Mon, 05 Dec 2011
By No5 Chambers Immigration Team
If adopted by the UKBA Migration Advisory Committee’s recommendations will result in reduction of “family immigration” by up to 63%
The United Kingdom Border Agency’s announcement on 16 November 2011 that the Migration Advisory Committee (MAC) had recommended that the minimum salary which has to be demonstrated by people settled in the UK who wish to be joined by their spouses or partners should be drastically increased.
As they stand the Immigration Rules covering applications for such visas require only that the couple can show that they will be maintained in the UK “adequately”.
“Adequacy” was interpreted by the Immigration Appeal Tribunal (long before the current era of the Asylum and Immigration Chambers of the First and Upper Tier Tribunals) in a case called KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 to mean that the amount of money at the disposal of the family must amount to at least as much as it could expect to receive if its members were in receipt of benefits payments.
Explaining this conclusion the Tribunal said that it was axiomatic that the level of such benefits payments plainly reflected what the UK government regarded as an adequate level of support for those who either had no income of their own, or whose income was insufficient adequately to support them.
In the report submitted to the UKBA the MAC has calculated that on the basis of the test in KA and Others applicants currently have to show that they have £5500 after tax at their disposal after they have paid their rent or other housing costs. (This is because the income support payable to a couple weekly is around £105). This equates to an annual income of £13,700 before tax.
The MAC says that this amount of income is not capable of showing that the applicant for a visa is unlikely to become "a burden on the state". It therefore suggests that that the minimum income to be demonstrated should be increased to at least £18,600, and preferably to £25,700.
The MAC acknowledges that many UK based “sponsors” – the husband, wife or partner who is either a British citizen or has indefinite leave to remain in the UK – will not be able to meet its proposed test. It says:
“We estimate that nearly two thirds of sponsors would not have sufficient gross income to meet the higher of these thresholds.”
So that would mean a 63 % reduction in annual immigration of spouses and partners to the UK. The lower of the two suggested figures would achieve a reduction of 45%.
Of course the coalition government has committed itself to achieving a reduction in “net migration”– indeed back in December of last year the MAC indicated that it was not likely that a serious reduction could be achieved only by reforms to the employment immigration routes which the government was then implementing via the capping of Tier 1 General and Tier 2 General routes of the points based system. In the course of this year dramatic action has been taken to reduce the numbers of people coming to the UK from outside the European Economic Area in order to study at UK colleges.
Presumably therefore changing the Immigration Rules so that couples are largely unable to live together in the UK would not be regarded by the government as anything other than the outcome which it hopes to achieve.
But preventing people who are in a close relationship akin to marriage from living together in the UK undeniably breaches the UK’s commitments under Article 8 of the European Convention on Human Rights, which could mean that the proposed course faces difficulties on its way to being approved by Parliament.
The MAC acknowledges this possibility but discounts it, saying at paragraph 2.34 of its report:
“We understand that, although not expressly mentioned in Article 8(2), case law (such as R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840) has established that the maintenance of an effective immigration control falls within permissible aims set out in that Article.”
In fact many judgments of the House of Lords and of the European Court of Human Rights which are now authoritative in relation to obligations under Article 8 have come after the Court of Appeal’s judgment in the Mahmood case, which dates from the early part of this century, and actually concerns a decision taken before the implementation of the Human Rights Act 1998. In AF Jamaica v Secretary of State for the Home Department [2009] EWCA Civ 240 the Court of Appeal itself doubted the Mahmood judgment.
