The long awaited case of MM v Secretary of State for the Home Department  EWCA Civ 985 was finally decided last week, and the outcome certainly does not make happy reading.
The judgment in this much discussed test case, examining the minimum income threshold set out in the Immigration Rules for spouses seeking to enter the United Kingdom, has been roundly criticized as a judicial retreat in the face of political pressure. This short article will not go over the judgment in detail again; instead I wish to remark upon the constitutional significance of the judgment, and to set it within the wider picture.
Many advocates had hoped that the current political climate, which has led to wholesale attempts to be ‘tough’ on immigration found in the new Immigration Act 2014, would not prevent the judiciary from taking a strong stance in favour of justice and against rules which are plainly unfair and discriminatory. Sadly, those advocates have been severely disappointed by this deferential judgment handed down in the Court of Appeal by some of the most senior immigration judges, and brightest legal minds, in the country.
The judgment is a very long and, frankly, a fairly unconvincing one. Lord Justice Atkin’s leading judgment starts out with some promise, as he pays homage to the rather self-evident fact that:
“the Secretary of State plainly is under a common law duty not to promulgate an [immigration rule] that is discriminatory, manifestly unjust, made in bad faith or involves “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.”
But as always, this will be a question of degree to be decided by judges, and given that the case goes on to hold that the rule itself does not fit into this category, these appear to be nothing but empty words, (not so) stealthily sidestepped under what must have been considerable political pressures.
It is important to note briefly, for those unfamiliar with the common law of the UK, that the main legal framework for the whole field of immigration is to be found in the Immigration Rules. The large majority of these rules do not come from Acts of Parliament, or what is known to lawyers as primary legislation. Rather, most of these rules are what is known as delegated or secondary legislation. In constitutional law, itself developed by judges over time by way of the common law (i.e. precedent), this means that the Home Secretary is empowered by primary legislation (in this case the Immigration Act 1971, the enabling Act) to issue new Rules, which are then, in theory at least, read before Parliament before becoming secondary legislation.
Now this distinction is very important when it comes to challenging the validity or fairness of a particular law or rule in court, because our constitutional framework is premised on the theory of parliamentary sovereignty, or supremacy, and the idea that judges ought not to have the power to strike down laws which have been passed by the country’s democratically elected officials in Parliament. Because secondary legislation has not technically been passed by Parliament, but rather the power delegated to an appointed official, its status is legally inferior to a full blown legislative Act, and is therefore more open to challenge through the courts.
In practice, the political climate of the last few decades, governed as it is by radical short-termism and woefully insufficient political discussions prior to the issue of such laws, has led to an increased willingness of judges to challenge provisions which are plainly unfair or unjust, and have not been given sufficient consideration by law-givers.
Since the turn of the millennium, the main weapon in the court’s arsenal in this regard has been the frequently misunderstood, and now controversial, obligation imposed by Section 6 of the Human Rights Act 1998 to test all laws for compatibility with the UK’s international human rights duties. The court does this by examining the alleged infringement of human rights, and considering whether such an infringement is proportionate to the aim behind the provision. At the very least, therefore, the court is required to examine each particular provision to ensure that it is made in pursuit of a legitimate aim and that it can be justified, i.e. that it is ‘proportionate’. Judges do so by reference to previous cases, including cases decided by the European Court of Human Rights in Strasbourg which, under the current law, are considered to be authoritative.
Now this is obviously a controversial subject. And, unfortunately, there is little chance of a serious discussion taking place in the public domain so long as politicians continue to bad-mouth human rights and encourage the country’s media to take a one dimensional approach to the issue. This is perfectly understandable in one way; it is far more convenient for politicians to do what they want, make laws and decisions, without the cumbersome annoyance that comes with public scrutiny by the courts.
On the other side of the fence, of course, is the argument that public scrutiny in the courts of parliamentary processes and laws issued by Ministers under delegated powers is of fundamental importance in any democratic society which claims to operate under the rule of law, particularly one in which scrutiny in other areas, such as Parliament itself and even the media, is often found to be lacking. Surely, so the argument goes, there must be someone who is willing and empowered to provide a check on the power of government officials.
This latest case touches on this important constitutional dynamic by providing a clear example of the judiciary limiting their own powers on an important, and politically live, issue. Rather than declaring the minimum income threshold to be unfair and discriminatory, which it plainly is, or, at the very least, finding that the processes by which the government prepared, implemented and justified this rule were wholly inadequate, instead the Court of Appeal more or less politely bowed and retreated in the face of pressure.
Now it is no doubt an incredibly tricky role for judges as final arbiters of our Constitution. Since we have no written formulation or Code to follow, the power of the judiciary, and of the delicate balance between the various branches of the State, falls to be determined by the judges themselves. Effectively, the judges decide the Constitution, and so who has the power to do what. This of course requires a considerable amount of restraint, and senior judges will always appear to defer to a democratically elected legislature, as they are appointed, not elected (at least for the time being).
The case of MM was a perfect example of a shoddily reasoned, researched and implemented rule which ought to have been sent back to the Government for reconsideration. The rule is clearly unfair and discriminatory, and the policy justifying it is sketchy at best. Yet instead of standing up to the Home Secretary, the Court abnegated its own authority and upheld the rule.
The upshot of all this is sadly a bad judgment and bad law. Unsurprisingly the Home Office was triumphant as it announced the backlog of some 4,000 cases of impoverished spouses seeking to join family in the UK would start to be cleared (i.e. rejected) from the end of July. There is still some small hope for these applicants that they might successfully appeal the individual decisions in their cases on human rights grounds.
But, judging by the current judicial approach in this context, we shouldn’t hold out much hope for them getting a just result.
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