Indirectly Sending the Citizen Into Exile? The Relevance of British Citizenship to Proportionality Under Article 8 ECHR
Judgment in R (oao MM & Ors) v Secretary of State for the Home Department  EWHC 1900 (Admin) was delivered on 5 July 2013 by Blake J. The judgment is important for two reasons: first, it rules on the lawfulness of the new maintenance requirements for family visa applications, and secondly, it gives guidance on the significance of British citizenship in proportionality under Article 8 ECHR.
The judgment concerned recent changes to the Immigration Rules requiring UK sponsors to demonstrate earnings of at least £18,600 (or more where there are children) in order to bring a spouse to the UK. Whilst Blake J did not strike down the new maintenance requirements, in relation to sponsors who are British citizens or refugees he found the requirements to be ‘unjustified and disproportionate’. This has had an immediate effect on decision making in the Home Office as applications which do not satisfy the maintenance requirements but do not otherwise fall to be refused have been put on hold.
The judgment also makes an important pronouncement on the constitutional importance of British citizenship in the context of the proportionality of interferences with family life under Article 8 ECHR.
The changes of 9 July 2012 inserted new provisions into the Immigration Rules on Article 8 family and private life. From 9 July 2012 in relation to family life the Rules provided that a non-EEA partner in a genuine and subsisting relationship with a British citizen, refugee or settled person present in the UK would only be permitted entry clearance or leave to remain in the UK where (save exceptional circumstances) there were insurmountable obstacles to family life continuing outside the UK (EX.1.(b) of Appendix FM to the Immigration Rules).
Notwithstanding the Home Office’s stance on Article 8 ECHR since 9 July 2012, the Upper Tribunal and the High Court have consistently found that the Rules do not exhaust the consideration of Article 8 ECHR and there should be a secondary assessment outside the Rules where necessary.
The judgment in MM considers Article 8 ECHR outside of the Rules. It finds that whilst refugees may be able to show ‘insurmountable obstacles’ to relocation, as required by the Rules, this is unlikely to be the case for British citizens. The exceptional circumstances policy maintained by the Secretary of State outside the Rules is not sufficient to ‘render the decision making process as a whole lawful and compatible’ with the ECHR. This finding placed weight on the relevance and importance of British citizenship.
In addition Blake Jgives guidance on how the proportionality balancing exercise should be struck where the partner in the UK is a British citizen. In short, where the sponsor is a British citizen, refusing entry clearance (or, presumably, leave to remain) to his or her partner such that the British citizen has to leave the UK in order to continue family life requires ‘compelling justification’. Striking the balance this way gives effect to ‘the constitutional right of the British citizen to reside in the country of nationality without let or hindrance’.
Blake J’s conclusion is clear: in the absence of a conscribed list demonstrating compelling justification (factors such as criminality, adverse immigration history and lack of self-sufficiency are considered relevant), refusing entry clearance (or leave to remain) in circumstances where the British citizen partner would have to relocate outside the UK to continue family life is a disproportionate interference with rights protected under Article 8 ECHR.
This is a significant development of the courts’ treatment of the relevance of the constitutional right to reside in the UK conferred by British citizenship to the proportionality of an immigration decision under Article 8 ECHR. Blake J’s findings build on Sedley LJ’s judgment in the Court of Appeal in Quila. The point was not developed by the Supreme Court in that case, but a few months earlier, in ZH (Tanzania), the Supreme Court found that the British citizenship of children facing removal from the UK was a relevant factor in determining where they should live. There was, however, no detailed analysis of why it was relevant as it appeared to be conceded by the Secretary of State. Also, in the EU context, Sanade has made clear that relocation outside the EU is not an acceptable option for EU citizens. It is in this context that Blake J’s development of the significance of British citizenship is timely and welcome.
MM has been appealed by the Secretary of State.
Rowena Moffatt is a barrister practising in immigration law and a DPhil candidate in Law at the University of Oxford.