In the case of R (Alvi) v. Secretary of State for the Home Department, the UK Supreme Court struck down an attempt to introduce substantive changes to immigration rules through the “back-door” of policy, guidance or instructions - rather than in the body of the rules themselves.
One significant change that was attempted was the introduction of a minimum income threshold of £18,600 for a British citizen or settled person to bring a non-EEA spouse or partner, fiancé or proposed civil partner to live in the UK. The amount is then increased if the British citizen or settled person also seeks to bring children to the UK. Certain rules make this threshold extremely hard to cross – for example, any discretion to waive the threshold is removed and the first £16,000 of a couple’s savings is discounted. A further difficult change was the increase of the minimum probationary period for settlement for non-EEA spouses and partners from two years to five. Campaigners pointed out that this would mean that vulnerable individuals such as victims of domestic violence would be compelled to stay in harmful situations for even longer.
The Supreme Court held that the Immigration Act requires any substantive changes to immigration criteria to be put before parliament.
Click here to read an article in the Guardian about the case.
Click here to read the full judgment.
In another development at the UK Supreme Court level, a Scottish adoption law has been upheld following a challenge by the biological mother of a child who had been adopted without her consent.
The mother challenged s.31 of the Adoption and Children (Scotland) Act 2007, saying that it was incompatible with her Article 8 rights under the ECHR to private and family life. The contentious s.31 states that an adoption order may be made without the parent’s consent where one of four grounds is met. The relevant grounds in this case were subsection 3, which states that an adoption order may be made without the consent of the parent if “the parent is, in the opinion of the court, unable satisfactorily to discharge their parental responsibilities towards the child and likely to continue to be unable to do so; or an order has been made removing their parental responsibilities and rights”, and subsection 4; “even if the conditions in ground 3 do not apply, the welfare of the child otherwise requires the consent to be dispensed with”. The appellant mother argued that subsection 4 was insufficiently precise and therefore not “in accordance with the law” as required by Article 8 of the ECHR in the event of interference with her right to private and family life. The court held that the meaning of the subsection was in fact sufficiently clear and therefore compatible with Article 8. The appellant’s claim was therefore dismissed.
Click here to read a more detailed analysis of the case over at the UK Human Rights blog.