Home Alone: British Nationals and the Denial of the Right to Family Life
By Dr. Noelle Quenivet. ILHRU. UWE, Bristol
The European Court of Human Rights is often criticised for compelling States to let in hordes of unwelcome foreigners. Yet, a group of Britons who currently live abroad and would very much like to come back home with their non-EEA partners or those who have come back home hoping to bring their non-EEA partners at a later stage are prevented to do so unless they meet a number of requirements, amongst others earn a certain amount of money. To make it clear, these are not individuals who have engaged in criminal activities or who have entered in sham marriages. Unfortunately, British nationals cannot even find solace in the so-called ‘generous’ case-law of the Court which is so criticised by the current government. The plight of these individuals is described here and, more recently, there. Testimonials are also available on some websites.
The new Family Migration – UK Immigration Rules came into effect on 9 July 2012. These rules stipulate that a British national whose partner is a non-national of the European Economic Area and wishes to live together with his/her partner in the UK will have to show earnings of at least £18,600 per annum. In cases where they have children, the British partner would have to earn £22,400 or more, plus £2,400 for each additional children (unless the children have British nationality). The UK has explained that this is to prevent lower income applicants from bringing partners to the UK who will then be dependent on State benefits and a burden on UK taxpayers (Statement of Intent, Family Migration, paras 74, 76).
Article 8 ECHR protects among others the right to family life. The concept of a family is defined as going beyond the traditional, nuclear family of a married couple with children as it encompasses e.g. civil partners, same-sex partners, etc. (Johnston and Others v Ireland, Application 9697/82; Kroon and Others v The Netherlands, Application No. 18535/91; Schalk and Kopf v Austria, Application 310141/04). In the cases depicted in the press/blogs the individuals are clearly part of a family: a couple with or without children having lived together for some time. Therefore the right to family life in pursuance of Article 8 ECHR is engaged.
The aim of Article 8 is ‘to protect the individual against arbitrary action by the public authorities’ (Ciliz v the Netherlands, Application 29192/95, para 61) and undoubtedly denying entry clearance to an individual can be viewed as an arbitrary act. However, it must be recalled that ‘there [is] no obligation on a State under Article 8 of the Convention to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.’ (Abdulaziz and others v United Kingdom, Application No 9214/80; 9473/81; 9474/81, para 68). Yet, when making such a decision, the authorities must strike a balance between the interests of the individual (especially under Article 8 ECHR) and of the community as a whole (Ciliz, para 61).
The three-pronged test set by Article 8 ECHR and as interpreted by the European Court of Human Rights specify that the measure taken must be in accordance with the law, must pursue a legitimate aim and be ‘necessary in a democratic society’.
First, the measure must have a basis in domestic law. This is the case as the grant of leave to enter is regulated by the Immigration Act 1971, UK Borders Act 2007 and the Borders, Citizenship and Immigration Act 2009, and explained in the Immigration Rules (Appendix FM and Part 8 (Family Members)). Moreover the measure should be enshrined in a law that is ‘accessible to the persons concerned and formulated with sufficient precision to enable [him/her] … to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’ (Onur v United Kingdom, Application No. 27319/07, para 48). The immigration rules are easily accessible and further information is provided on the website of the UKBA. The measure is thus in accordance with the law.
Second, the measure must pursue a legitimate aim as enumerated in Article 8(2) ECHR. As stated by the UK in the Statement of Intent: Family Migration and the Statement by the Home Office on the Grounds of Compatibility with Article 8 of the European Convention on Human Rights, para 55 the ‘economic well-being of the country’ is the legitimate aim for establishing a minimum income requirement. An individual should not upon arrival be a burden on the State. In Ciliz, a case where the individual had received welfare benefit (para 53) the European Court of Human Rights accepted that the preservation of the economic well-being of the country served a legitimate aim (para 65).
Third, in relation to whether such a measure is ‘necessary in a democratic society’ the Court will grant a wide margin of appreciation to the State (Berrehab v The Netherlands, Application No 10730/84, para 28). The crux is whether the interference is proportionate to the legitimate end sought to be achieved (Huang (FC) v Secretary of State for the Home Department  UKHL 11, para 18), i.e. whether the refusal of entry clearance interferes disproportionately with the right to a family life. The right of the applicant must be undertaken in the light of the impact the measure would have on the family (Beoku-Betts v Secretary of State for the Home Department  UKHL 39, para 20 Lord Brown of Eaton-under-Heywood). In Hode and Abdi the European Court noted that as the spousal applicant had never enjoyed family life in the UK and there were no obstacles preventing her partner to join her at her habitual place of residence the refusal of entry clearance was not unlawful. This means that for couples whose non-EEA partner has never lived in the UK and who have lived together abroad prior to applying for leave to enter the Court will not find that the refusal to grant leave to enter is disproportionate. For those couples who have been living in the UK but whose non-EEA partner is to be removed (for e.g. overstaying a visa) the test will be whether the British partner (and children) can be expected to live in the country of removal, i.e. there are no ‘insurmountable obstacles in the way of the family living in the country of origin or one or more of them’ (Rodrigues da Silva and Hoogkamer v Netherlands, Application 50435/99, para 39). Mere practical difficulties for relocating in the country of removal are not deemed sufficient enough to breach Article 8 ECHR.
British citizenship and thus the right of abode in the UK (Immigration Act 1971, sections 1 and 2) is a factor that ‘has not been considered of particular significance’ in the case-law of the European Court (Poku v United Kingdom, Application No 26985/95. See also Onur, para 60). However, this might change in the UK in the light of a decision of the Supreme Court stressing that, in relation to children of British nationality, citizenship is not merely a status in immigration law but ‘carries with it a host of other benefits and advantages’ (ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 4, para 41, Lord Hope). However, this would only work if the couple had children, these children were British nationals and had had little, if any, exposure to the country of removal, which is rarely the case in the stories depicted in the press/blogs.
Although a claim might not be successful under Article 8 ECHR alone, it might be stronger if combined with Article 14 ECHR which protects the right to non-discrimination in the enjoyment of other Convention rights and freedoms. One of the criticisms towards the current legal regime is that EU nationals are allowed to bring their family to the UK irrespective of their level of earnings (Directive 2004/38/EC and Regulation 492/2011 As the list of factors of discrimination is non-exhaustive (Engel and Others v The Netherlands, Applications no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, para 72) it might be possible to argue that discrimination is based on ‘other status’, an expression that does not need to relate to an innate or inherent characteristics (Clift v United Kingdom, Application No 7205/07,para 59). Such a status can be conferred by law (Bah v United Kingdom, Application No 56328/07, para 46). In the instant case the status of British nationals (Immigration Act 1971) and that of EU citizens (Article 20 TFEU) are clearly established by law.
For an issue to arise under Article 14 ECHR the Court must be convinced that there is a difference in treatment of individuals in analogous situations (DH and Others v the Czech Republic, Application No 57325/00, para 175). There are here two groups of individuals: British nationals bringing non EU partners and EU nationals bringing non EU partners to the UK. They are in an analogous situation.
Moreover the difference in treatment must be objectively and reasonably justified, i.e. the discrimination pursues a legitimate aim or ‘there is [a] reasonable relationship of proportionality between the means employed and the aim sought to be realised’ (Hode and Abdi, para 43). That being said, under the doctrine of the margin of appreciation the Court will defer to the national authorities to assess whether and to what extent such a difference in treatment can be justified (Hode and Abdi, para 52). In relation to general measures of economic or social strategy, the Court allows States a wide margin of appreciation (Hode and Abdi, para 52) as States know best the society and its needs. The Court will only intervene if it believes that the State has stepped over the mark, i.e. when the policy choice is ‘manifestly without reasonable foundation’ (Stec and Others v the UK, Application Nos. 6573/01 and 65900/01, para 52). The reason for the difference in treatment is because in pursuance of EU law, the UK cannot prevent EU nationals to bring their non-EU spouses in the UK. It is a treaty obligation as the UK is bound by the TEU to apply EU law. Under international law, the UK is bound by the pacta sunt servanda principle and under EU law by the principle of sincere cooperation encapsulated in Article 4(3) TEU.
As sad as this may be the conclusion is that under Article 8 ECHR (right to family life), even combined with Article 14 ECHR, the European Court is unlikely to find that the current financial requirements in the immigration rules that prevent Britons to bring their non-EEA partners to the UK or to be reunited with them in the UK is a violation of the Convention.