UPDATE: see report of Supreme Court judgment here.

The judgment is now out in the long awaited case of MM v Secretary of State for the Home Department [2014] EWCA Civ 985, the test case challenging the minimum income threshold for spouses wishing to enter the United Kingdom. The Court of Appeal has allowed the Secretary of State’s appeal. This is terrible, heartbreaking news for those families forced apart by the rule. An appeal to the Supreme Court will be attempted, but it will be many months until any outcome is known.

For previous coverage here on Free Movement, including the previous judgment, see here.

What follows is just an initial reaction on reading the judgment. I will update if anything further occurs to me.

The judgment is a long one and it is only at paragraph 132 that Lord Justice Aikens, giving the leading judgment, starts to answer the questions he has posed. In what many readers might be forgiven for thinking is a promising sign he holds that

the Secretary of State plainly is under a common law duty not to promulgate an [immigration rule] that is discriminatory, manifestly unjust, made in bad faith or involves “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.

If such an immigration rule were to be made, the courts could strike it down. Further, an immigration rule must be formulated in such a way that if it does interfere with a relevant Convention right

it has to be capable of doing so in a manner which is not inherently disproportionate or inherently unfair. Otherwise it will not be “rational”, or it could be stigmatised as being “arbitrary” or objectionable”, or be characterised as being “arbitrary and unjust”

More ominously, he goes on to suggest that the test for striking down an immigration rule is whether it is “incapable of being proportionate and so is inherently unjustified”.

On the issue of the rights of British citizens, Aikens LJ disagrees with the judgment of Blake J in the High Court and holds that

There is nothing in the 1971 Act or the common law that grants a “constitutional right” of British citizens to live in the UK with non-EEA partners who do not have the right of abode in the UK and who are currently living outside the UK.

For a time it seemed that the British citizenship our politicians sometimes claim is precious might indeed have some value, but the Court of Appeal thinks not. Aikens LJ goes on to comment that the right to marry and found a family in the UK is not an absolute right. He accepts that the minimum income requirement is, like the minimum age requirement before it, a very significant interference with the right to private and family life and goes on to examine the question of whether it is justified in public law terms.

The policy aim behind the minimum income requirement was to safeguard the economic wellbeing of the country. What is the test for the court in assessing whether the measure in question (the minimum income requirement) is lawfully connected to the policy objective?

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.

The argument has several strands to it, one of which is said to be social integration of new arrivals. During the hearing in March, the Home Office lawyers boldly suggested that the rich will integrate into society better than the poor. This is questionable on so many levels, particularly given the press coverage of London ghettos of abandoned properties owned by foreign nationals, questionable tax arrangements and the lack of an English language requirement for Investor visas. Aikens LJ is not interested in those issues, though:

The conclusion that a family with more income would be more likely to be capable of integrating is not susceptible of empirical proof, but a belief in the link between higher income and the likelihood of better integration is rational.

The work done by the Migration Advisory Committee is found to be further evidence that the policy is rationally connected to the overall aim. The members of the MAC itself have argued that their brief was unconnected to the setting of a minimum income threshold: they were merely asked to assess at what level a family would have no recourse to public funds at all. Their naivety is exposed in the judgment: their work is an essential building block in the Home Office legal case and a cornerstone of the Court of Appeal’s judgment.

The most striking conclusion comes at paragraph 147, where Aikens LJ to my mind rather tenuously distinguishes Quila and Baia, previous attempts to prevent entry by foreign national spouses:

Here, the non-EEA partner can enter the UK, provided the UK partner’s level of income, judged by the policy of the new MIR to be appropriate, is reached. Admittedly there is a total ban on the entry of non-EEA partners where the UK partner cannot reach the required minimum and I appreciate that this ban could be life-long. But there has always been a maintenance requirement at a certain level and if that level was not reached by the UK partner, then there was a total ban on the entry of the non-EEA partner unless, in an individual case, it would be disproportionate under Article 8(2) to refuse entry in that instance. Moreover, maintenance requirements are not unique to the UK and it does not set the highest minimum annual income; Norway does.

The problem with this approach in legal terms is that there has also always been a minimum marriage age. And several other European countries specify 21 or even older as a minimum age for sponsorship. A person can get married at 16 in the UK before Quila but was not able to sponsor a foreign spouse until 18. The Supreme Court found in Quila that the increase from 18 to 21 was unlawful. The analogy with the minimum income seems to me very strong and not so easily dismissed. Income is for some people as immutable as age: many people on the national minimum wage working all the hours there are simply cannot achieve the required income level and never will.

The coup de grâce comes at paragraph 150, where Aikens LJ concludes that after all the work the Secretary of State and her dedicated officials put into setting the income threshold where they did, the judgment of the Secretary of State “cannot be impugned”.

There will be those who disagree, I imagine rather vehemently. The conclusion that as long as one has done one’s homework it does not matter that it was unreadable nonsense is certainly quite a striking one.

UPDATE

The Home Office has issued a response to the Court of Appeal’s judgment:

Immigration and Security Minister James Brokenshire said:

I am delighted that the Court of Appeal has comprehensively upheld the lawfulness of this important policy.

We welcome those who wish to make a life in the UK with their family, work hard and make a contribution, but family life must not be established in the UK at the taxpayer’s expense and family migrants must be able to integrate.

The minimum income threshold to sponsor family migrants is delivering these objectives and this judgment recognises the important public interest it serves.

Today’s judgment overturns an earlier High Court judgment from July 2013, which was supportive of the approach but found that the impact of the minimum income threshold on family life could be disproportionate.

Applications on hold will now receive a decision

The judgment will mean that, from the 28 July, the 4,000 individuals whose applications are currently on hold, pending this judgment, will now receive a decision. These are cases which met all the requirements apart from the minimum income threshold and now stand to be refused.

Considering the impact of the judgment, the update is accompanied by a rather tastelessly chosen image.

UPDATE 2

No 5 Chambers have put out a news item on the judgment that is worth reading. Three of No 5’s barristers were instructed in the case.

UPDATE 3

The Home Office has announced that refusals of the suspended applications will start from 28 July 2014. At least this will allow applicants to correct errors made by the Home Office or argue their cases on human rights grounds.

UPDATE 4

Interesting House of Commons Library briefing on the history of and controversy around the spouse minimum income requirement.