Clayton: Textbook on Immigration & Asylum Law 3e 
End-of-chapter question guidanceClayton: Textbook on Immigration & Asylum Law 3e
Chapter 9
9.1 The Politics of family life
In July 2008 the government produced a paper: ‘Marriage visas; the way forward’ confirming its intention to go ahead with the changes proposed in December 2007. These were implemented by changes in the immigration rules.
The decision in Metock (see chapter 6) underlines the disparity between the conditions applying to spouses joining settled people (e.g. language tests) and the conditions applicable to spouses of EU citizens exercising Treaty rights.
9.2.1 Respect for family life
In Beoku-Betts v SSHD [2008] UKHL 39 the House of Lords held that the central point about family life was that the whole was greater than the sum of its parts.
The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed. (Baroness Hale para 4).
This perspective has the potential for significant impact on Article 8 cases.
9.3 Immigration rules for married partners
In November 2008 the immigration rules were amended to provide that sponsors, spouses and civil partners must be over 21 on the proposed date of arrival. A requirement has been added that
the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application (para 281(b)(vi));
9.3.2.2 Disabled sponsor
When MK (Somalia) v Entry Clearance Officer was heard in the Court of Appeal the outcome was different ([2007] EWCA Civ 1521). The Court of Appeal held that the appellant could rely on disability living allowance paid to his spouse for the purpose of establishing that she would be adequately maintained without recourse to public funds. The sponsor proposed to use her DLA to support her husband to be her carer. This was a way of meeting her needs by use of the DLA, and a matter of her choice. This is the first Court of Appeal authority on this point, and changes the direction of case law on the capacity of disabled sponsors to support their spouse.
In addition to disability living allowance the sponsor received an enhanced level of income support. This, by agreement of the parties, was incorporated into the calculation of the figure for adequate maintenance.
NM (disability discrimination) Iraq [2008] UKAIT 00026 was another case in which the sponsor was reliant on DLA. The decision did not refer to MK (Somalia), but it appears to be distinguishable on its facts in that in NM the sponsor seemed to be spending all his DLA. The tribunal held it was not discriminatory on grounds of disability to refuse entry clearance to his spouse, though the argument under the Disability Discrimination Act was not fully explored. Note that here the sponsor did not propose to support his spouse financially as his carer, but the tribunal noted it would have been open to her to support herself by finding employment.
AM (Ethiopia), SA (Somalia), MB (Pakistan), VS (Sri Lanka) and MI (Somalia) were joined in the Court of Appeal on the question of third party support (see below). In the course of the judgment, some doubt was cast on reliance on income support by disabled sponsors, but the effect of the case is not altogether clear.
In AM (Somalia) v ECO [2009] EWCA Civ 634 the Court of Appeal held that the application of the rule prohibiting reliance on public funds to disabled sponsors was not unlawful discrimination under Article 14 ECHR.
9.3.3.3 Third party support
The question of whether third party support is permitted for spouses and adult relatives has been addressed for the first time by the Court of Appeal in AM (Ethiopia), SA (Somalia), MB (Pakistan), VS (Sri Lanka), MI (Somalia) and another v Entry Clearance Officer [2008] EWCA Civ 1082. The court decided that third party support was not permissible for these groups, and confirmed it was not available for children, as held in MW (Liberia) [2007] EWCA Civ 1376. The appellants have appealed to the House of Lords.
In AB (Third-party provision of accommodation) v ECO Islamabad [2008] UKAIT 00018 the tribunal held that accommodation could be provided by a third party. Paragraph 281(iv) of the immigration rules requires only that ‘there will be’ accommodation for spouses. It was unrealistic to expect a young couple always to finance this for themselves:
Access to accommodation in the United Kingdom is, as is well known, an expensive matter… It is part of the common experience of mankind that children, even adult children, continue to live with their parents or sometimes other relatives. (para 9)
TS (working holidaymaker; no third party support) India [2008] UKAIT 00024 is a useful decision to read on third party support as it explores the different ways in which maintenance is treated in different immigration rules. It predates AM in the Court of Appeal but does not conflict with it.
9.3.4 Accommodation
See AB (Pakistan) above.
9.3.8 Legal issues concerning marriage and divorce
In CB (Validity of marriage: proxy marriage) Brazil [2008] UKAIT 00080 the tribunal held that a proxy marriage conducted in Brazil on behalf of a Brazilian and a Polish national living in the UK was valid. It was valid in Brazilian law, and the established authority was that a marriage must be valid in the law of the country in which it is celebrated. The Home office argued that as the couple were domiciled in the UK their marriage should be valid according to the law of the UK. This is consistent with the present trend of government policy concerning citizenship and integration – an expectation that people who live in the UK will run their lives according to British requirements in a variety of ways. However there is no precedent for it in law. Domicile governs the individual parties’ capacity to marry, which was not in issue in this case, but the lex celebrationis governs its validity.
9.3.8.1 Capacity
The government has made the promised rule change concerning age, and as from November 27th 2008 the lower age limit for entry clearance, leave to enter and leave to remain has been raised to 21 for spouses, civil partners, fiancé(e)s, unmarried and same sex partners, and for their sponsors (HC 1113 paras 85 to 87).
9.6.1 Admissible relatives
In MB (Somalia) v Entry Clearance Officer [2008] EWCA Civ 102 the court held that separated parents over 65 were not included in paragraph 317(i) of the immigration rules when read according to their ordinary meaning. This exclusion, the court thought, was not irrational or discriminatory, but was a policy choice open to the Secretary of State.
9.8 Family life for those with limited leave
The immigration rules paras 319A to K make detailed provision for leave for the family members of those granted entry under the Points-Based system. The requirements include making explicit that a partner must not be excluded by a general ground of refusal. The requirements are extensive, and consist of an accumulation of the requirements for entry as the partner of a settled person together with certain features of the points-based system, such as having sufficient funds available in accordance with the formulae given for the PBS. A partner is prohibited from working as a Doctor in Training unless they are already in the UK as a partner of a student or worker (para 319 D(iii)).
9.8.1 Restricting the right to marry
In R (on the application of Baiai and others)(Respondents) v SSHD(Appellant) and one other action (formerly R (on the application of Trzcinska and others)(Respondents) v SSHD (Appellant) and one other action [2008] UKHL 53 the House of Lords dismissed the government’s appeal and held that
The right to marry was a fundamental one, and not subject to the same qualifications as the right to respect for family life. Article 12 ECHR allowed for the right to be subject to national laws governing its exercise, but this should be taken as referring to regulatory matters. Any rules of substance must only be for a generally recognized public interest and must never impair the substance of the right.
A national authority could impose conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage was one of convenience. Only a marriage of convenience could be prevented. Conditions must be reasonable. To interfere in general with the right to marry of third country nationals was arbitrary and unjust.
The scheme established by s.19 Asylum and Immigration (Treatment of Claimants etc) Act 2004 was capable of being operated lawfully, but only if the section was read to say that permission to marry could not be withheld where the marriage was not one of convenience and the application for, and grant of, such permission was not subject to conditions which unreasonably inhibited exercise of the applicant’s right under article 12.
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A fee fixed of £295 impaired the essence of the right to marry. The conditions that a person must have a certain number of months leave remaining, which were set in the IDI, were not related to the genuineness of the marriage and were an unreasonable restriction on the right. Payment of the fee was suspended by the Home Office on 9th April 2009.
9.9 Refugees and Asylum seekers
Chikwamba v SSHD [2008] UKHL 40 is a leading restatement of the right to respect for family life, following closely in the spirit of Huang and Kashmiri. The appellant’s immigration status barely featured in their Lordships’ decision. They considered it disproportionate to expect Ms Chikwamba and her small child to return to Zimbabwe to await the outcome of an entry clearance application. Only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad. The Home Office policy which generally required a return to apply for entry clearance should only be applied when the facts warranted it, as they had for example in Ekinci where the appellant had ‘an appalling immigration history’.
The decision in Metock (see update chapter 6) will apply to asylum seekers, failed asylum seekers and refugees just as to any other third country national married to an EU national exercising Treaty rights.
9.9.1 Family amnesty policy
The House of Lords in AL (Serbia) v SSHD [2008] UKHL 42 confirmed that the family amnesty policy was not required to apply to the appellant. As a policy designed to meet administrative and financial pressures on the Home Office, that office was entitled to select those applicants (families) to whom a grant of leave would generate maximum benefit of that kind. The secondary reason, to benefit families, gave effect to the right to respect for family life, but did not entail a right for young people as such to benefit.
Reading list
Berry, Adrian, ‘The Right to Marry and Immigration Control: the Compatibility of Home Office Policy with Article 12 and Article 14 ECHR in Baiai,’ Journal of Immigration Asylum and Nationality Law, Vol. 23. no. 1 pp.41-50
Lai, Agnes, ‘The Children Act 2004 and Asylum seeking families – every child matters’ Journal of Immigration Asylum and Nationality Law (2008) Vol.22 no. 2 pp. 174-182
Pilgram, Lisa, ‘Tacking “Sham” Marriages: the Rationale, Impact and Limitations of the Home Office’s “Certificate of Approval” Scheme’ Journal of Immigration Asylum and Nationality Law Vol. 23 no. 1 pp.24-40
Wray, Helena, ‘Integration Requirements and Family Life’ Journal of Immigration Asylum and Nationality Law (2008) Vol.22 no. 4 pp. 317-321
Yeo, Colin, ‘Protecting the Rights of Family Members’ Journal of Immigration Asylum and Nationality Law (2008) Vol.22 no. 2 pp. 147-153
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