24 Oct 2016, 31 mins ago

The Supreme Court has granted permission to appeal in two cases, SS (Congo) [2015] EWCA Civ 387 and Agyarko [2015] EWCA Civ 440.

In 2012, several parts of the Immigration Rules were re-written, and the rules applicable to family members of British citizen and persons with leave to remain in the UK were significantly altered. The new rules came into force on 09 July 2012 and are an attempt on the part of the Secretary of State to provide clear guidance on how the balance between the public interest and the individual interests in relation to article 8 of the European Convention of Human Rights (right to private and family life) should be struck.

Since the new rules came into force, the lawfulness of several of the rules’ requirements have been challenged, on both applications for leave to enter (LTE) and leave to remain (LTR).

In SS (Congo), the Court of Appeal (Civil Division) helpfully set out the legal framework and recent jurisprudence on the interplay between the Immigration Rules and article 8 ECHR and then analyzed the lawfulness of the requirement under challenge, namely the minimum income of £18,600 required by the sponsor of a foreign spouse or partner, and the documentary evidence necessary to prove that this threshold is met (Appendix FM-SE, specified evidence). The Court also revisited the case of MM (Lebanon) V SSHD [2013] EWHC 1900 (Admin), which looked at the legality of the LTE section of the Rules and was dismissed by the High Court.

According to the Court of Appeal, the same approach to article 8 ECHR should be taken in relation to the substantive rules on LTE and LTR and in relation to the documentary evidence required by the Rules.

In “near miss” cases, i.e. cases where the requirements of the Rules are almost met, the balancing exercise between public and individual interest might be a relevant consideration, which may tip the balance in favour of the applicant. However, this is not always true. For example, future possible improvements in an applicant’s financial position should not require the Secretary of State to take a speculative risk as to whether the requirements of the Rules will be met at some point in future.

In SS Congo, the appellant was the Secretary of State, and her appeal was allowed.

The second case to which the Supreme Court has granted permission is Agyarko [2015] EWCA Civ 440.

In this case, the Court of Appeal (Civil Division) dealt with two separate appellants, who were overstayers and had formed relationship with British citizens.

Their respective applications for leave to remain had been refused by the Secretary of State, and both appellants had commenced judicial review proceeding in front of the Upper Tribunal (UT).

The UT refused permission, which was later granted by the Court of Appeal itself. The Court considered section EX1 of Appendix FM of the Immigration Rules.

The two linked appeals were dismissed on the basis that there were no ‘insurmountable obstacles’ for the appellants’ respective families to relocate abroad. Family life had started when the appellants were overstayers, and were therefore permeated by precariousness, and therefore the appeals also failed on Article 8 ECHR.

Jurisprudence on article 8 ECHR is never static due to number of challenges constantly brought to the attentionof the courts.

Now that permission has been granted by the Supreme Court on these two cases, we await to hear the Supreme Court’s interpretation of the relationship between the Immigration Rules on family members and article 8 ECHR.