A House Divided: the Human Rights Burden of Britain's Family Migration Financial Requirements

• Publication year: 2015

A House Divided: The Human Rights Burden of Britain's Family Migration Financial Requirements

Courtney L. Broussard^*

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TABLE OF CONTENTS

I. INTRODUCTION...............................................................................508

II. EUROPEAN COURT OF HUMAN RIGHTS IMMIGRATION AND HUMAN RIGHTS CASE LAW............................................................511

III. DOMESTIC IMMIGRATION HUMAN RIGHTS CASE LAW..................516

IV. CURRENT IMMIGRATION RULES: FINANCIAL REQUIREMENTS FOR SPONSORING A FOREIGN FAMILY MEMBER'S ENTRY INTO THE UNITED KINGDOM...................................................................518

V. CURRENT RULES AND EXISTING CASE LAW...................................519

VI. PROPORTIONALITY OF CURRENT FINANCIAL MINIMUMS...............524

VII. CRITICISM OF MM V. SECRETARY OF STATE FOR HOME DEPTARTMENT.................................................................................526

VIII. CONCLUSION...................................................................................529

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I. INTRODUCTION

In July 2012 the United Kingdom promulgated a new immigration rule requiring legal residents wishing to sponsor the entry of a foreign spouse to provide proof of access to an annual gross income of £18,600 (approximately $24,800), and additional savings of £16,000 (approximately $21,300).¹ Such a rule raises questions about how and when domestic immigration policies intersect and come into conflict with the European Convention on Human Rights (ECHR or the Convention).² An inability to meet these income requirements has resulted in the separation of families, many with small children.³

In June 2013 the BBC reported the story of Douglas Shillinglaw and his family.⁴ Because he cannot meet the new financial requirements, Mr. Shillinglaw is unable to reunite with his five-month-old son, his Nigerian wife, and his wife's six-year-old son from a previous relationship.⁵ Mr. Shillinglaw is self-employed, and although he claims he has no problems paying his bills and mortgage, he is unable to sufficiently demonstrate to the Home Department he will be able to meet the financial income requirements.⁶ Mr. Shillinglaw also commented that the rules do not take into consideration the fact that he has family in the U.K. who would step in and help care for his wife and their children should anything happen to him.⁷

Further, MM v. Secretary of the Home Department, a case decided in July 2013, presents the stories of three lawful U.K. residents who are unable to sponsor visas for foreign family members due to a lack of sufficient income. The MM plaintiffs each presented the Court with slightly different circumstances rendering them incapable of meeting the £18,600 per-year-income requirement. The first plaintiff, MM, is a Lebanese refugee working

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toward his Ph.D. at a British university.⁸ He is thirty-four and married to a Lebanese national who has a Bachelor of Science degree in nutrition and works in Lebanon as a pharmacist.⁹ Further, MM's wife is fluent in English.¹⁰ Despite both MM and his wife clearly being qualified for a number of well-paying jobs, MM cannot meet the threshold requirement. MM takes particular issue with the rules for two reasons: (1) he cannot cite to his wife's potential earning capacity to help meet the required threshold, and (2) he cannot rely on familial support, even when that support is documented by a covenant deed.¹¹

The second MM plaintiff is Abdul Majid, a British citizen who has lived in the U.K. since 1972.¹² Mr. Majid's wife, whom he married in 1991, lives in Pakistan.¹³ The couple has five children, four of whom have lived in the U.K. since 2001.¹⁴ Although Mr. Majid's wife has been admitted to the U.K. for limited stays over the course of their marriage, she has now been indefinitely denied entry because of her husband's lack of income.¹⁵ Mr. Majid's chief complaint with the rules is that they separate his wife from the couple's children.¹⁶

The third and final complainant in MM is Shabana Javed. Mrs. Javed is a British citizen who has limited work skills and who has been unable to find work above the £18,600 threshold. Because she cannot find work that pays above the threshold, she cannot sponsor the entry of her husband, who currently works as a civil servant in Pakistan.¹⁷ Mrs. Javed has the same complaints as MM, but, in addition, argues the rules unjustifiably discriminate against British-Asian women.¹⁸

Circumstances like those of Mr. Shillinglaw and the plaintiffs in MM implicate and demand the analysis of the convergence of domestic immigration law and the ECHR. The U.K. adopted the ECHR in 1998 when Parliament voted to pass the Human Rights Act.¹⁹ Due to this domestic

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legislation, the U.K. is bound to respect the rights contained in the ECHR, which the Human Rights Act mirrors. Therefore, if a U.K. immigration rule violates a right guaranteed to U.K. citizens by way of the Human Rights Act of 1998, it can be struck down "by the Administrative Court exercising its supervisory function in judicial review proceedings."²⁰

The interplay between this particular immigration rule and the Human Rights Act (the Act) is especially significant because the rule's legality is being challenged under Article 8 of the Act.²¹ Article 8 of the Act guarantees a right to respect for family and private life.²² It further states:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.²³

In recent years the European Court of Human Rights (the Strasbourg Court) has broadened the scope of the protection provided to nuclear families by Article 8 of the ECHR.²⁴ Therefore, given the fact immigration rules are tightening in the U.K. while the Strasbourg Court is concurrently redefining what protections the ECHR guarantees, the question arises: where do British courts and legislators go from here? Is this rule requiring lawful U.K. residents to produce proof of significant annual income and personal savings assets truly necessary to ensure British taxpayers are not burdened by immigration? And what duties does the British government owe to non-citizens related to lawful U.K. residents in light of the Strasbourg Court's expanding interpretation of Article 8? The answers to these questions will impact not only families currently separated because of the financial requirements, but will also impact the future of immigration regulation in Europe as a whole.

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This Note will focus on the recent MM decision and use this opinion as the basis for analyzing the intersection of the ECHR and domestic immigration law.²⁵ Additionally, there will be a thorough discussion of recent decisions by the Strasbourg Court analyzing the extent to which Article 8 provides an avenue of attack against immigration laws restricting the ability of families to reunite and live together in European countries.

First, this Note provides a discussion and overview of both the current state of European law, i.e., case law coming from the Strasbourg Court on the subject of Article 8, and of current U.K. case law interpreting and applying Article 8. Second, this Note explains how the current financial requirement works and provides an overview of the government's stated intentions for enacting the new financial requirement. Third, this Note analyzes the proportionality of the current financial requirements. Finally, this Note argues that European legislatures, domestic courts, and the Strasbourg Court should protect the recently developed expansive view of Article 8 protection for families. Further, because immigration policy addressing family life and reunification can so easily run afoul of rights guaranteed in the ECHR, this Note advocates for immigration rules and policies allowing for a more individualized, case-by-case assessment of whether a lawful resident should be allowed to sponsor the entry of a foreign family member.

II. EUROPEAN COURT OF HUMAN RIGHTS IMMIGRATION AND HUMAN RIGHTS CASE LAW

The modern British immigration system, as opposed to the system of immigration that existed during the time of the British Empire, began with the passage of the 1971 Immigration Act.²⁶ The 1971 Immigration Act established categories of Commonwealth patrials and non-patrials.²⁷ In other words, the U.K. recognized traditional citizen and non-citizen distinctions, and placed immigration rules and burdens on those individuals falling into the non-citizen category.²⁸ Non-patrials, or non-citizens could not enter the U.K. without leave.²⁹ Thus began the British system of complex immigration rules governing who can and cannot enter the country, and who

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can and cannot act as an entry sponsor for non-citizens living abroad. From early on, many U.K. immigration rules did not apply equally to all foreign citizens.³⁰ This remains true today. Individuals who are citizens of other European Union countries, for example, do not have to meet work permit requirements in order to enter the U.K. for long periods of time.³¹ All other non-European Union nationals, however, do have to meet the requirements set out in the immigration rules.³²

These "rules," are subject to judicial review because they work in practice as delegated legislation creating legal rights and obligations.³³ A British court will be able to review these rules using a proportionality test.³⁴ Thus, if a court holds that the rules present a disproportionate infringement on human rights when viewed in light of the government's stated policy goal (i.e., ensuring U.K. citizens and residents sponsoring the immigration of a foreign national family member do not strain...