The UK Supreme Court has accepted the principle of a minimum income requirement for bringing family members into Britain, but hope remains for British families split by borders.
For thousands of British citizens and residents separated from loved ones by immigration rules, headlines after the Supreme Court decision on 22 February 2017 in the "MM case" were disappointing. [1] The case concerned rights of non-EEA nationals to join British spouses or partners in the UK and the minimum-income requirement (MIR) that the sponsor earns £18,600 a year or has substantial savings, with more needed for dependent non-citizen children.
The court did not find the MIR incompatible with article eight of the European Convention on Human Rights (the right to respect for private and family life). Yet hidden behind the government's 'victory' is a more complex picture offering hope to some of those affected. The primary challenge was to the MIR's level. The court found that there was adequate justification for it and that it had been carefully set as the minimum a household needs to avoid eligibility for welfare support in the light of advice from the Migration Advisory Committee. Though expert evidence disputed that this would lead to significant welfare savings, this was not acknowledged in the judgment. To do so the court would have had to make a political judgement and question the boundaries of a lawful policy.
The court gave weight to the immigration control objectives of the MIR but not the citizenship rights of British partners and family wanting to live together in the UK. The MIR excludes both citizens and their families because the sponsor may never be able to earn or save enough: about 40% of the working-age population don't earn enough. The effect on women, on ethnic groups, and on those living in many regions is disproportionate.
This imbalance illustrates the weakness of UK citizenship rights. The state is intolerant of other claimants to a citizen's affections and is willing to see citizens forced to pursue life elsewhere rather than concede material benefits to "foreign" families. The onus is on the citizen to prove they cannot set up family life outside the UK. This approach is not unique to the UK. Elevated income requirements or other onerous criteria exist in several European states. While the EHtCR has not ruled directly on the compatibility of income requirements with article eight, its record does not suggest that it would find a violation without additional factors such as unjustifiable discrimination on nationality or gender grounds. Citizens' rights to family life in their own home receive only weak protection in human rights law.
For the children
Though the judgment avoids citizenship rights, it does focus on children's best interests. The judges now require the Home Office to adapt rules and practice to better reflect the best interests of children affected by the MIR in line with ECtHR decisions. It found that while the government acknowledges the importance of a child's best interests, these have not permeated the framework of the UK family migration regime in a way that adequately reflects the government's legal duties.
At the moment, provision for children in the immigration rules only applies in exceptional circumstances and instructions to immigration officers on children's interests are restrictive. If a parent is to be admitted outside the rules, something like support during a major medical procedure is required, and the rules present the difficulties families face as resulting from parental choices.
Instructions for decision makers make it unlikely that a child will be able to reside with both parents where the MIR is not met and only a tiny number of applications are granted without a human rights appeal. The court has now required the Home Office to reconsider how the child's best interests will be given primacy. This is significant, as while the court has often criticised policy in the past, sometimes fatally, it has not found the immigration rules unlawful.
There are nearly 15,000 children separated from at least one parent because of the current MIR and many of these are British children whose citizenship rights have not so far been acknowledged. How will the redrafted rules account for the absence of a parent on a child's best interests? The court merely mentions that "a broader approach may be required in drawing the 'fair balance' required by the Strasbourg court". This is vulnerable to reinterpretation by the Home Office to fit their policy objectives, so it is to be hoped that the Supreme Court will use its supervisory function to make sure any new approach is robust enough. The court also required guidance to be amended to allow other sources of income and assets to be taken into account when considering whether article eight requires admission of the partner despite not meeting the MIR. The same concerns apply: a bare acknowledgement that they may count does not ensure that they will receive due recognition.
The cost-benefit analysis of family life
It is disappointing the court did not do more to address the problems faced by separated families, despite acknowledging their hardship. The court mentions the problems facing not only British citizens living in the UK but those who have formed relationships while living and working abroad and who now wish to return with their families to the UK, remarking that many of them got together before the latest rules were considered and that their children, most of whom will be British, are severely impacted. Yet, despite this empathy, the court observes that hardship is not considered a reason to find incompatibility or unlawfulness of the rules or instructions. But then to do so would have brought the court into a direct collision with the government on a key plank of immigration policy and the judgment suggests an unwillingness to do this.
While this reluctance to engage with the government's policy justification is understandable, it means the government's basic attitude towards family life and migration has been left mostly intact. The cost-benefit analysis of family life reverberates through the judgment and emerges victorious, showing how the court has adopted the government's vision of the protected nature of the British welfare state.
The court does not challenge the state's view of the need to exclude 'others' who do not belong, irrespective of their genuine relationships and tremendous hardships. This rejection of the situations of many British citizens is the worst shortcoming of the decision. It is particularly disappointing as the government's case for the MIR based on the potential welfare savings was comprehensively criticised in the evidence, though this was invisible in the final judgement.
The MM judgement is a legal decision, however, and the choices a country takes about migration rights, family rights and the rights of citizens are ultimately political. They concern what kind of society it wants to be. The justifications offered for the MIR focus on two issues: the income level at which a couple will not be a cost to the state and the income needed to allow foreign immigrants to integrate.
At first glance, the MIR seems rooted in the liberal value of personal choice and responsibility, according to which citizens may choose whatever life they wish, but must not expect others to subsidise it. Applying this private choice model to the family is problematic for several reasons. First, it will often impose heavy costs on children who cannot be held responsible for their situation: children who are forcibly separated from a parent do not enjoy the best conditions for their development and a state that creates such a separation inflicts real harm on its own citizens.
Second, where individuals lack a fair opportunity to earn enough, the income requirement is a failure of reciprocity. A state which allows extreme levels of inequality, in which there are massive regional disparities in levels of income and wealth; in which women and members of minority communities earn much less than white men; and in which many jobs are precarious and ill-paid, is disadvantaging those it has already failed. Theresa May has said that she wants the state to work for everyone, but it has not done so and this undermines the MIR's central premise of personal responsibility.
Third, many citizen rights are basic and should not be denied lightly on grounds of income even if they impose costs on others. Citizens have rights of speech, association, political participation and basic health care largely independently of their means because to deny them these would be to deny them goods they need as equal citizens of a democracy. To stop citizens living in their country with their partner, cutting them off from the goods of family life, is to deny them access to life possibilities that are so very widely shared that the denial disrespects them as equal members of society. A state that treats its citizens thus cannot reasonably make the demands on them of allegiance and compliance that it does.
Family and spousal migration is only part of migration policy, and there is the broader issue of the values migration policy should serve. In recent UK political argument three sets of voices have dominated. First, the 'taxpayer', the net contributor to government spending. Second, the needs of 'business' for labour. Third, the 'legitimate concerns' of 'ordinary people', constructed as the 'white working-class' worried about changing communities.
The interests of citizens in having a valuable set of life-choices available, in being able to live, work, and settle where they wish, and in being able to make their life with a partner of their choice and maybe start a family have been crowded out of debate. As a result many citizens and their partners have been thwarted in their pursuit of central life goals or forced to pursue them through compliance with arcane rules and at the mercy of an unfathomable bureaucracy. If we aspire to the values of a liberal society – as all major political parties claim – our policies ought to reflect them.
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[1] R (on the application of MM (Lebanon) and others) [2017] UKSC 10 On appeal s from [2014] EWCA Civ 985 , [2015] EWCA Civ 387