The Queen on the application of MM

 The Secretary of State for the Home Department


The Secretary of State for the Home Department
The Queen on the application of Abdul Majid
e Secretary of State for the Home Department


The Queen on the application of Shabana Javed
The Secretary of State for the Home Department
Interested Parties

These are three applications for judicial review directed to common parts of amendments made to the Immigration Rules promoted and laid before Parliament by the defendant Secretary of State in June 2012. The relevant rules are set out in Appendix 1 to this judgment. The applications have been listed for hearing together.
MM is a 34 year old national of the Lebanon. He entered the United Kingdom in 2001. He subsequently sought refugee status and has been granted limited leave to remain in the United Kingdom as a refugee until 28 January 2014. He has two brothers with similar leave to remain. He lives with his sister EF who has discretionary leave to remain arising from the breakdown of her marriage. She has a son AF who looks to MM as a father figure.
MM became engaged in the summer of 2010 to a Lebanese woman. As a result of his refugee status he was unable to visit his fiancée in Lebanon but they met in Syria where they originally planned to marry in 2012. Those plans have had to change because of the deteriorating security situation in Syria. Since the issue of these proceedings, MM and his fiancée have met twice in Cyprus on visit visas, and in January 2013 married by proxy in Lebanon.
MM is a post-graduate student of the University of Wolverhampton presently working towards a Ph.D. He has been unable to find employment commensurate with his qualifications and at present works 37 hours per week with different employment agencies as a quality inspector on varying shift rates. He states that he earns approximately £15,600 on average per annum gross. His wife is also well qualified. She has a B.Sc in nutrition, has computing skills and is employed in Lebanon as a pharmacist. She speaks fluent English. Initial inquiries with employers in the UK indicate that she is likely to find skilled employment if she were lawfully resident here.
The problem for MM and his wife is that the amended Immigration Rules governing applications made from 9 July 2012 (see Part 8 rule A277) impose a mandatory financial requirement for the admission of a spouse without children to be met by the sponsor of a minimum income of £18,600 per annum gross (see Appendix FM paragraph E-ECP 3.1 to 3.2). He cannot meet that threshold.
He and his wife would be staying in the same accommodation as that presently occupied by MM and his sister and so her arrival would not occasion any additional housing costs.
He further complains that the Rules prevent the couple being able to rely on his wife’s earning capacity if she applies for entry clearance. It is necessary for the sponsor to show that he can support his spouse from his earnings alone and/or any savings or other source of income throughout the 30 month probationary period that applies to spouses (Appendix FM-SE at paragraph 1 (c).
Further the Rules prevent the couple from being able to rely on a deed of covenant made by MM’s brother to the effect that he will provide £80 per week to the couple over a five year period; neither can they rely on a promise by MM’s father to provide an equal amount in remittances from Lebanon (Appendix FM –SE at paragraph 1 (b)).
The combination of these measures means that MM cannot enjoy married life with his wife. He cannot live in their mutual country of nationality as he is a refugee from persecution there. She cannot meet the maintenance requirements for entry clearance to come to the United Kingdom. She has not applied for entry clearance as the requirements are mandatory and there is no discretion under the rules for the Entry Clearance Officer to waive them. She would have to pay a substantial fee (at present £826 for a spouse) for an application that could not succeed. There is no other country in which they have the right to reside.
He contends that the restrictions are an unjustified interference with his right to respect for private and family life. Until July 2012, the only material requirement of the Immigration Rules was that admission of the spouse would not lead to additional recourse to public funds and that the couple would be adequately accommodated (see rule 281 (iv) and (v)). This rule continues to apply for certain classes of admission. On the claimed facts he could meet that requirement without difficulty.
Whilst he acknowledges that the rules make provision for the spouses of refugees who have not yet been granted indefinite leave to remain, he contends that they do not sufficiently recognise the problems facing refugees. These problems include not merely the inability to live elsewhere, but also difficulties in finding employment and establishing themselves economically in the host society, particularly in the early years when they still have only limited leave to remain.
MM further contends that his problems in achieving family unity have an adverse impact on his nephew AF who benefits from the care MM provides. AF has been granted leave to join these proceedings as an interested party and contends that amongst other things, the Immigration Rules when applied to MM’s case infringe not only the Human Rights Act but the statutory duty to have regard to the welfare of the child with respect to immigration decision making: see s.55 Borders Citizenship and Immigration Act 2009 (BCIA), that came into force in November 2009.
Mr Majid is aged 55 years and is a British citizen of Pakistani origins. He has been resident in the United Kingdom since 1972. In 1991 he married a Pakistani woman who lives in Kashmir, although the marriage was not formally registered until 2006. The couple have five children, four of whom have been resident in the United Kingdom since 2001 and the youngest of whom lives with his mother.
Mr Majid’s wife has had problems in obtaining an entry clearance to join him in the United Kingdom. She was refused entry clearance as a spouse in 2002, 2006 and 2010 and refused admission as a visitor in 2012. These dates indicate that none of those refusals had anything to do with the new Immigration Rules in force from 9 July 2012. There have been problems about recognition of the marriage and satisfying the previous maintenance and accommodation requirements.
Mr Majid has been out of work since 2006 and now receives £17,361 per annum in benefits. He believes that his prospects of employment would be improved if his wife were admitted and she could look after the children. He also contends that he has relatives who are willing to provide him and his wife with financial support until they are self sufficient.
His essential complaint is that the provisions of Appendix FM that deal with the admission parents of children settled in the UK for 7 years do not apply to parents who also seeking to enter as spouses (contrast rule E-LTRPT 2.3( b)(iii) and 4.1 ).
Ms Javed is a British citizen of Pakistani origins. She has been resident in the United Kingdom for the past 30 years. She lives in the Handsworth area of Birmingham that she describes as economically and socially deprived. She has no qualifications and her employment history is intermittent.
She is presently unemployed and states that she is unaware that any of her female peers when in employment have been able to earn more than £18,000. She further contends that her local job centre only offers employment vacancies at salaries that are below this rate of pay.
On 4 May 2012 she married a Pakistan national who lives and works in Pakistan as a civil servant. She is unable to sponsor him to come to the United Kingdom because of her lack of employment or employment prospects at the requisite salary level. She states that she cannot leave Handsworth to find better paid employment because she would lose her free accommodation with her extended family. She does not consider that she has the financial resources or personal background to improve her qualifications so as to enhance her ability to find better paid employment.
Ms Javed complains of the same provisions of the rules as MM. In addition she states that the requirements of Appendix FM-SE and in particular rule 2 and 13, to prove the requisite income of the sponsor by six months continuous wage slips before the date of application by the same employer or twelve months with a change of employer is unnecessarily onerous and operates harshly on those with casual employment records.
She further submits that the whole regime of financial sponsorship introduced by Appendix FM as a whole is unjustifiably discriminatory as it impacts on women and in particular on British Asian women, because the socio-economic data demonstrates that this segment of society suffers from significantly lower rates of pay or employment than others, notably men. She particularly complains that the exclusion of her husband’s potential earnings in the UK constitutes discrimination as the statistical data considered below suggests that male migrants are able to obtain employment and support their families without difficulty.
The modern era of immigration control dates from the Immigration Act 1971 mainly in force in January 1973. Section 1 of that Act is into the following terms: