Current Update – Salary Requirement Issue

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The case currently considering the salary requirement as set by the Secretary of State for the Home Department was heard by the court on 4 and 5 March 2014 before the Court of Appeal.

The Secretary of State made a series of points:-

That Blake J had erred in law in substituting his own judgement in place of the Secretary of State’s on whether the Rules struck a proportionate balance between the interests of migrants and their sponsors on the one hand and the public interest in protecting welfare benefits and facilitating integration into UK society on the other (where the Government had consulted widely on the level of the minimum financial threshold including commissioning a study from the Migration Advisory Committee and against the background of more than the usual level of parliamentary scrutiny of the Rules.) In the Secretary of State’s view, Blake J had erred in his approach to the level of scrutiny required for the consideration of the rules since these fell into an area of social and economic policy for which the Strasbourg Court has previously held demands a wide margin of appreciation.

A great deal of argument in Court was devoted to the intensity of review that must be conducted by the Courts and the extent to which it was permissible to scrutinise the legitimacy of the Government’s aim to determine whether they struck a fair and proportionate balance.

The Court appeared to accept that the financial threshold did amount to an interference with family life. They were further interested in argument as to whether the Court was entitled to evaluate for itself the “necessity” of the interference with family life and more importantly whether the least intrusive alternative to meeting the Government’s aims had been properly considered.

The Court also heard submissions on the MAC report, the body which proposed the £18,600 threshold, in particular, that MAC limited itself to considering the economic argument, shying away from social, political and legal considerations which it considered were for the Secretary of State. MAC looked at the position in a number of other countries but did not consider the decision of the Court of Justice of the European Union’s decision in C-578/08 Chakroun Minister Van Vuitenlandse Zaken [2010] ECR 1-1839 [2010] 3 CMLR 83 in which the Court considered that for State’s party to Directive 2003/86/EC, Stable and Regular Resources should be interpreted by reference to the measure of income support levels.

MAC had considered it was not appropriate to take into account housing costs in the calculation of the £18,600 threshold, despite the fact that (unbeknown to it at the time) the Rules would then go on to inconsistently permit third parties to provide housing to migrants and their sponsors: their own evidence suggested that almost one third of applicants lived with family or friends rent free on arrival, a saving even on MAC’s calculation of some £6000 per annum. MAC considered that there was no case for taking into account the regional differences in the costs of rental accommodation, despite the fact that rent outside London is significant cheaper. Nor did MAC engage with the manner in which such applications must be evidenced. Indeed, MAC had considered that there was a case for including the earnings of migrants. These were all decisions reached by the Secretary of State alone.

The Court will need to grapple with this evidence and it is likely to give further guidance on the intensity of review of Government policy in areas touching upon core and fundamental Human Rights.

The second argument posed by the Secretary of State was that Blake J erred in finding that there was likely to be a disproportionate interference with Article 8 ECHR in the generality of cases where applicants could show earnings above the National Minimum Wage, in combination with other forms of finances (third part support, job offers, savings below £16,000 etc) since such cases could be considered under the Entry Clearance instructions to ECOs in the exercise of discretion and the search for exceptional circumstances.

The third argument made by the Secretary of State was that the best interests of (frequently British) children could be appropriately considered through the guidance issued to ECOs on the search for exceptional circumstances, despite conceding that the Rule had to be framed in a manner which gave proper and primary respect to those interests and against a backdrop of Entry Clearance decisions showing that no such consideration is given.

Fourthly, the Home Office sought to uphold Blake J’s finding that the Rules were not discriminatory in effect to certain classes of applicant, in particular, Refugees, women and nationals of certain countries (in particular Bangladesh and Pakistan). The Court heard submissions on the fact that the Secretary of State had not given adequate consideration to the position of female sponsors who earned on average 14.9% less than their male counterparts and were therefore less likely to be able to meet the minimum income threshold, that young people and those living in certain deprived parts of the UK could not hope to reach the level set by the Rules and that Refugees who married most-frequently suffered from mental ill-health and language difficulties and were unable to earn the levels demanded by the Rules.

In argument, none of the authorities from the Upper Tribunal were cited in support of the proposition relied upon by the Secretary of State.

No one will be comforted by the length of time it will take the Court of Appeal to deliver their Judgment, despite the promise that they would do so in a shorter period of time than it took for Mr. Justice Blake to do so: our best guess is a result from the Court in two to three months prolonging the obvious agony caused to thousands of people affected and separated by these promiscuous requirements.

We will of course keep you posted as to any further developments.