# MM case - overview / court hearing



## SoYouThink (Sep 8, 2013)

Overall 

All (both sides and the judges agreed) rules are NOT compliant with Article 8. This is a big thing, as Article 8 is the law as the judge stated very clearly during the proceedings. 

I felt both days were very positive, and all indications seem to suggest the panel of three judges could see the rules failing on several fronts - especially as they impact British citizens and refugees; former who have the right to live here 'without let or hinderance' and the second group as not really having the option of going home or even exercising free movement rights.


Home Office

I think HO's main arguments fell within the following points:

1) 'Scheme as a whole' is Article 8 compliant, defining scheme as the combination of the rules + guidance + obtaining ministerial authority + tribunals. 

Rules: This is despite the fact that the original Statement of Intent suggested Theresa May wanted the rules to encompass all article 8 features as a standalone document.

Guidance: It was made clear during hearing that guidance issued in October 2013 (1+ year after the rules were in place). 

Ministerial authority: Evidence provided showing Mark Harper referred only to ONE case of exercising his ministerial authority to grant leave outside of the rules under exceptional circumstances (judge commented that this was evidence of just one exception in over a year of the rules being in place). ==> Column 278WH
House of Commons Hansard Debates for 19 Jun 2013 (pt 0002)

Tribunals: Judge said tribunals would apply Article 8 as Human Rights Act is the law. 

The message I got is that the judges don't think its right that several layers skip Article 8 with ppl being forced to rely only on the judicial system to apply the law. 

2) That policy making falls within the remit of the government and therefore the court should not interfere; that Justice Blake went too far. 

This is true to an extent in that judges can't tell the govt what the rules should be. However they do and must, get involved if the rules are not lawful.

3) Judges to accept that rules had had 'more' than the normal level of parliamentary scrutiny.

MM side

Three clients involved, so three barristers spoke addressing many very relevant things including but not limited to:

1) Irrelevance of the cases referred to by the HO side to this situation (often declared by HO itself as not being 'material'!)

2) Citing cases justifying the courts getting involved, and that Justice Blake in fact did not go far enough.

3) That not one refusal letter shownig exercising of article 8 by ECOs had been seen.

4) ECOs spending 6-12 mins making a decision, questioning why therefore were application fees so high and only increasing; and how could a situation really be assessed in such little time if clearly a tick-box exercised was used.

5) Citing cases that showed the rigidity of the rules as well as their incorrect application e.g. someone below the threshold by £0.69 per week was refused a visa; £15,999 cash savings ignored, overtime disallowed even though rules allow for it, lowest payslip annualised using statutory sick pay received for 1 week out of the 6 months even where the total annual salary was over £18,600

6) Section 55 i.e. best interest of child clearly not being considered

7) That Brits were being forced into exile; families were breaking up; irrational that so many felt only route open to family reunification was going down Surinder Singh route to achieve same aim of settling in the UK

8) 30 month probationary period too long and intrusive

9) Reminder to court that while minimum income threshold was one for the govt to set, court retains obligation to rigorously test measures adopted are proportionate. 

10) Non-EEA spouses have no recourse to public funds and Secretary of State has been taking undertakings from sponsors that should there come a time when migrant spouse has recourse to public funds, sponsor would reimburse ==> clearly therefore not a drain on the public purse.

11) These weren't sham or forced marriages affected; the right to marry, co-habit and raise a family were a fundamental and constitutional right, therefore any interference must be justified.

12) Integration as a reason for the rules not right, as rather than help people fit into society, they were keeping couples apart, with 50% of workforce unable to meet income level and 122/401 occupations earning on avergae less than £18,600. Huge issue as in Quila at least it was clear than an 18 year old would reach age 21; here some may never be able to meet £18,600. This level of interference 'disproportionate' and not the least intrusive one which could have been adopted to achieve stated aims, given 3rd party support also excluded.

13) That the rules were not subject to sufficient parliamentary scrutiny, referring to the evidence for this as Hansard records and letter from the Chair of the Joint Committee of Human Rights to Theresa May: http://www.parliament.uk/documents/..._to_Theresa_May_immigration_rules_110711).pdf

14) Mismatch between the assumptions forming part of the £18,600 recommendation put forward by MAC - whcih included £6k for accommodation yet the income requirement was not lowered where it was demonstrated that applicant had mortgage-free/rent-free accommodation available to them.

15) Further barriers for those overseas, even where they may have been earning over £18,600, who wished to return home, given guidance required them too to have a job ready in the UK paying >= £18,600


Judges

Asked several questions / made comments to confirm the arguments being made. Memorable ones:

1) In response to HO saying that there was guidance on leave to be granted outside of rules on Article 8 grounds, judge pointed out that the rules clearly said that if the application failed to meet the financial requirements, it must be refused.

2) Said that there must be a balance of interest towards community in terms of the cost and benefit to public purse, and the interest of a smaller and specific group. HO response was that the courts should take a less intrusive approach, citing the example of ciagrette vending machines where commercial considerations were balanced with those of the individuals (or something like that!). 

3) Thought the only thing being discussed is whether Article 8(2) applied, but HO side contested saying they did not recognise the right of citizens under Article 8 to live in the UK with their spouse. HO suggested citizens could go live with their spouse elsewhere. Later HO suggested a couple (one British partner) having spent several years living in Australia who then 'choose' to move to the UK be considered less favourably as it was a choice to relocate. i.e. HO said there is "no general right to live in country of choice".

4) Confirmed HO was not distinguishing between the rules and their impact between citizens, refugees and others settled in the UK.

5) In response to the HO side saying reach of article 8 is primarily for the Strasbourg court to develop, said "...but this is fundamental Article 8 stuff. There can't be anything more fundamental than living with your wife and children." [sexist, but you get the gist!]

6) In response to HO citing cases where restriction applied to applicant being allowed to live in the country of their partner, judge pointed out that the cases being cited were from the point of view of the applicant, but sponsor's immigration status not contentious. Govt agreed and said they were looking at the immigration status of the applicant. Judge's response "but the income requirement applies to the sponsor not applicant" could elicit no real response from the HO side other than that Theresa May intended the rules to take into account article 8, but thats not a guarantee (!), citing the case of Huang.

7) In response to the HO side explaining why a job offer made to the non-EEA spouse was not accepted, they said 'a guaranteed job offer is not binding', leading the judge to say if it's a guarantee it's guaranteed, so which is it! Govt ummed and ahhed, essentially suggesting that such a job offer couldnt really be verified, but that even if was verified as genuine and reliable, one would expect job could be lost (well, duh - this applies to any one of us!) and said that's why even UK national sponsors were required to evidence employment over a period to demonstrate stability. HO suggested that spouses could instead come in under the Tier 2 route if they had jobs.

Govt went back to this point immediately questioning why the assessment of genuine jobs as done under Tier 2 could not be extended to spouses under the family route, saying they were raising this point in response to the HO trying to justify why job offers to foreign spouses was not acceptable as evidence of income.

HO's only response to this was "I'm not explaining why it's not but explaining why the Secretary of State is allowed to exclude this, as there are substantial risks and uncertainties". 

This was essentially the HO's response to most things - i.e. we're allowed to do this.

8) Judge to HO side: "So you're saying it's easier to integrate if you're more affluent than if you're poor." HO side: "Yes." 

Clearly not true and it didnt seem like the judges will blindly accept integration being a valid reason justifying the rules being what they are. 

9) Judges were keen to find out whether there were any circumstances where a person on benefits would receive less than £18,600. HO didnt have info handy but did provide it during the course of the hearing.


Let you know when there are any further developments.

Regards

Source ( Brit Cit )


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## bluesky2015 (Sep 3, 2013)

Thank you so much for sharing this critical information. Do you there is a hope of elimination of 18,600 or a savings of 62,500? When do you think they will announce the final decision?

Thank you loads once again..


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## SoYouThink (Sep 8, 2013)

Hard to say at the moment, outcome hopefully between 4 - 8 weeks. Judges said it will be quick as per artical.


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## Joppa (Sep 7, 2009)

Government is already mentioning Supreme Court, so if the rulings go against them, they will appeal to Supreme Court, and then Europe. Think in terms of years rather than months for final outcome when the government is forced to retreat. You never know. UK may be out of EU by then and have repealed ECHR. Then even Surinder Singh may no longer be an option.


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## SoYouThink (Sep 8, 2013)

It is very sad and painful to see partners of British Citizens torn apart due to the new rules, kids deprived, where is freedom and human rights? 
Basic maintenance threshold for British Citizens and adequate accommodation should be the requirements to sponsor a partner, the spouse will no be entitled to any public funds for 2 years anyway, that's alone is enough restriction. 

Trying to restrict British Citizens to marry from abroad, while opening doors for mass Eu migration with no restrictions...

Reading and hearing stories, even you meet the 18.6K new requirements, the spouse visa will not be guaranteed, they will look into the smallest thing to refuse the spouse entry i.e earn below the threshold by £0.69 per week, calculating income using the lowest pay slip ect ect ...
British Citizens are becoming second - class in their own country.


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## Joppa (Sep 7, 2009)

In any balanced discussion, you have to put the government's case, and in their defence, they do have the right to lay down rules which will restrict immigration of family members so that they don't end up being subsidised by UK taxpayers (even with no recourse to public funds) and don't put excessive pressure on overstretched public services. You can argue about the equitable level of income, but the line has to be drawn somewhere. Many other countries have similar rules, and while the threshold is second highest in Europe after Norway, so are the number of would-be non-EEA migrants.


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## SoYouThink (Sep 8, 2013)

My argument is, at this climate, financial climate, job cuts, and redundancies, luck of jobs, very difficult to be employed let alone finding a well paid one. Applying these restrictions is just not acceptable under this climate. 

2 days ago I had a consultation at work, my boss made an announcement, 300 jobs will be cut across the board within 3 months. 1 in 4 of us will be out. 

What is the government doing to help, cutting on non - EU immigration, but letting mass Eu migration in? how is that going to help? 

Before you allow new EU members in to work, balance our unemployment first ...


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## Joppa (Sep 7, 2009)

SoYouThink said:


> What is the government doing to help, cutting on non - EU immigration, but letting mass Eu migration in? how is that going to help?
> 
> Before you allow new EU members in to work, balance our unemployment first ...


Government is basically powerless to act against EU migrants, because of Uk's EU membership. That's why referendum on EU membership is on offer and renegotiation of membership terms so that some kind of control may be exerted to stem unlimited migration from poorer EU states.


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## UKgentle (Mar 4, 2014)

Keeping a close eye on this thread ty to the OP


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## naz299 (Mar 8, 2014)

Joppa said:


> In any balanced discussion, you have to put the government's case, and in their defence, they do have the right to lay down rules which will restrict immigration of family members so that they don't end up being subsidised by UK taxpayers (even with no recourse to public funds) and don't put excessive pressure on overstretched public services. You can argue about the equitable level of income, but the line has to be drawn somewhere. Many other countries have similar rules, and while the threshold is second highest in Europe after Norway, so are the number of would-be non-EEA migrants.


I think its a totally unjust law that interferes with the right to family life and don't understand why those who are effected by this law are not up in arms about it. We have to fight for our rights otherwise we are just slaves living by dictate and a right to family life is a fundamental right all of us should fight for. Those who don't agree maybe should move to countries in the middle east where they can have their lives dictated to them by the government in who they marry and life with. If you work full time and pay taxes then you should be able to have a family life without hindrance.


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## Joppa (Sep 7, 2009)

Can't you see the government's viewpoint - supported by the vast majority of British electorates - that individual's right to marry whom they wish and bring them into the country must be balanced by what the country can afford and it will not overburden public services?


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## SoYouThink (Sep 8, 2013)

Couldn't agree more naz299! 
Restricting British Citizens tax payers to whom they want to marry whilst easing off restrictions to new Eu members to bring their families and even claim benefits for them while still living abroad! jokes ...


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## _shel (Mar 2, 2014)

SoYouThink said:


> Couldn't agree more naz299!
> Restricting British Citizens tax payers to whom they want to marry whilst easing off restrictions to new Eu members to bring their families and even claim benefits for them while still living abroad! jokes ...


 Easing off, think you have your facts jumbled there. They have in fact just tightened the rules so EU citizens cant claim benefits and in some circumstances can have them taken away once getting them. 

Nobody is stopping you marrying btw, their is no law that says you can't.


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## ashkevron (May 1, 2012)

Joppa said:


> Can't you see the government's viewpoint - supported by the vast majority of British electorates - that individual's right to marry whom they wish and bring them into the country must be balanced by what the country can afford and it will not overburden public services?


While I can see your point, what I found out talking to people is that a vast majority of British electorate (practically, every single person I talked to) has NO idea about what you need to do to get a spouse visa. When I explained the situation to people, they were certain that:

1. I was wrong and

2. Surely, just by being married to the British citizen, I can come and live in the UK

So, it's questionable how many people would actually fully support current rules if they fully understood the rules and their implications, and whether this would be a vast majority. Which is maybe why, whenever Daily Mail gets a hold of some horror UK visa story, the visa soon seems to get granted.


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## bluesky2015 (Sep 3, 2013)

ashkevron said:


> While I can see your point, what I found out talking to people is that a vast majority of British electorate (practically, every single person I talked to) has NO idea about what you need to do to get a spouse visa. When I explained the situation to people, they were certain that:
> 
> 1. I was wrong and
> 
> ...


I hear you.. I have been carrying this pain in my chest since I have been rejected for my fiance visa last year and I have not seen my fiance since 2012..I wish there was something could be done against this unjust law..


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