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Supreme Court Makes Disappointing Decisions about Family Visa Rules

23 April 2017

The law is the law, and decisions made by the Supreme Court - which is the highest court in the UK - are binding on other courts and tribunals in the UK. The Supreme Court deals with many different areas of law, including immigration, and in the context of immigration the decisions of the Supreme Court are thus binding on all the lower courts and also on the immigration tribunals.

The Court made two decisions earlier this year about family visa rules which will have disappointed some. In the first case, R (on the application of MM (Lebanon), the Court discussed and analysed the requirements of the financial rules for spouse/partner visa applicants.

In the second, R (on the application of Agyarko), it dealt with the situation of those who are overstayers and who apply for immigration leave on the basis of a relationship with a spouse or partner who has legal status and is settled in the UK, ie a British citizen or someone who otherwise holds immigration settlement.

As is often the case, the Supreme Court judgements are quite discursive, and make instructive reading for the aficionado. But, the important question is, what do the decisions boil down to? In both cases the Supreme Court decided that the Home Office’s immigration rules are generally fair and proportionate. The Court decided not to strike the rules down as unlawful, which they could have done.

It also decided that, in some individual cases, the way that the rules operate could be too harsh. But this, the Court held, did not mean that they were unlawful.

In MM (Lebanon), regarding the financial rules, the Court said that the relevant immigration rules did not adequately protect the position of children, and that they therefore needed to be amended in that respect. The Court also found that some of the Home Office guidance published in association with the rules needed to be amended. But that was as far as the Court was prepared to go.

In Agyarko, regarding overstayers who are in relationships with settled people, the Court had to consider the issues of "insurmountable obstacles" and "exceptional circumstances" - which are wordings that occur in the immigration rules and which indicate the height of the hurdle that overstayers have to overcome in order for their application to succeed. It also dealt extensively with the question of "precariousness": ie when a relationship is established when a migrant is here illegally.

The Court’s conclusions were not encouraging - not encouraging for overstayers and their partners, at any rate. The Court re-affirmed the already long-established position that those in precarious relationships could not easily succeed under human rights principles, and that such principles could not, other than in highly compelling circumstances, come to their aid.

Lord Reed, who delivered the judgement, also referred to the "margin of appreciation", which means in this context the degree of autonomy that national governments have in law-making about immigration policy, despite the fact that such laws are likely to come under scrutiny from the European Court of Human Rights.

He said: "The margin of appreciation of national authorities is not unlimited, but it is nevertheless real and important. Immigration control is an intensely political issue… … The ECHR [European Convention on Human Rights] has therefore to be applied in a manner which is capable of accommodating different approaches, within limits."

He certainly got the bit right about immigration control being an "intensely political issue" but, as is very clear from the flavour of his words, the outlook for overstayers is not very strong under the law as it stands at present.

If you are an overstayer in a relationship with a person who is settled in the UK, or if you are such a person settled in the UK, you may well wish to take good legal advice about your situation so that you can ascertain the best way forward.




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