Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 1776

[2018] EWCA Civ 1776Case No C5/2014/2623 AND C5/2014/2173
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL,
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Garratt
OA/08476/2013
AND
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL,
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Bruce
OA/21431/2012
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/07/2018
Before
LORD JUSTICE KITCHINLORD JUSTICE McCOMBELORD JUSTICE LINDBLOM
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant1. MS (Pakistan)Respondents2. TD and X (A Child) (Jamaica)Respondent
Alan Payne (instructed by Government Legal Department) for AppellantTony Muman and Thomas Green (instructed by J.M. Wilson Solicitors) for Respondent in the First Appeal; Ramby de Mello (instructed by J.M. Wilson Solicitors) for the Respondent in the Second AppealHearing Hearing date: 12 July 2018
Judgment ApprovedLord Justice McCombe:
[1]These are two appeals by the Secretary of State for the Home Department (“the SSHD”) from decisions of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”), dismissing his appeals from decisions of the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”). The FTT decisions allowed appeals by the Respondents from decisions of Entry Clearance Officers. In each case the Entry Clearance Officer (“ECO”) had refused to grant to the Respondents leave to enter the United Kingdom on the basis that the respective sponsors to their applications, their spouses, did not satisfy the minimum income requirements (“MIR”) specified in the Immigration Rules (“IR”).[2]The relevant MIR were (in each case) set out in the following passages of Appendix FM to the I.R:
“17. The Respondent was required to meet (inter alia) the following requirements in the Appendix FM of the Rules (emphasis added): E-ECP.1.1. To meet the eligibility requirements for entry clearance as a partner all of the requirements in paragraphs E-ECP.2.1. to 4.2. must be met…. Financial requirements: E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of- (a) a specified gross annual income of at least- (i) £18, 600; (ii) an additional £3,800 for the first child; and (iii) an additional £2,400 for each additional child; alone or in combination with (b) specified savings of- (i) £16,000; and (ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income form the sources listed in paragraph E-ECP.3.2. (a)-(d) and the total amount required under paragraph E-ECP.3.1. (a); or (c) the requirements in paragraph E-ECP.3.3 being met. E-ECP.3.2. When determining whether the financial requirement in paragraph EECP.3.1. is met only the following sources will be taken into account- (a) income of the partner from specified employment or self-employment, which, in respect of a partner returning to the UK with the applicant, can include specified employment or self-employment overseas and in the UK; (b) specified pension income of the applicant and partner; (c) any specified maternity allowance or bereavement benefit received by the partner in the UK or any specified payment relating to service in HM Forces received by the applicant or partner; (d) other specified income of the applicant and partner; and (e) specified savings of the applicant and partner.”
E-ECP.1.1. To meet the eligibility requirements for entry clearance as a partner all of the requirements in paragraphs E-ECP.2.1. to 4.2. must be met…. Financial requirements: E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of- (a) a specified gross annual income of at least- (i) £18, 600; (ii) an additional £3,800 for the first child; and (iii) an additional £2,400 for each additional child; alone or in combination with (b) specified savings of- (i) £16,000; and (ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income form the sources listed in paragraph E-ECP.3.2. (a)-(d) and the total amount required under paragraph E-ECP.3.1. (a); or (c) the requirements in paragraph E-ECP.3.3 being met. E-ECP.3.2. When determining whether the financial requirement in paragraph EECP.3.1. is met only the following sources will be taken into account- (a) income of the partner from specified employment or self-employment, which, in respect of a partner returning to the UK with the applicant, can include specified employment or self-employment overseas and in the UK; (b) specified pension income of the applicant and partner; (c) any specified maternity allowance or bereavement benefit received by the partner in the UK or any specified payment relating to service in HM Forces received by the applicant or partner; (d) other specified income of the applicant and partner; and (e) specified savings of the applicant and partner.”[3]The first appeal (MS’s case) is that of the SSHD from the determination of the UT (Deputy Upper Tribunal Judge Garratt) of 3 April 2014, dismissing the appeal of the ECO from the FTT’s determination (Tribunal Judge Landes) of 14 February 2014 which had allowed the appeal of the first appellant (“MS”) from the ECO’s refusal decision of 12 March 2013.[4]The second appeal (the case of TD and X) is that of the SSHD from the decision of the UT (Deputy Upper Tribunal Judge Bruce) of 29 January 2014 dismissing the ECO’s appeal from the decision of the FTT (Tribunal Judge Afako) of 11 October 2013 which had allowed the appeals of TD and her son, X (aged 12) from the ECO’s refusal decision of 6 March 2013.[5]The applications for permission to appeal to this court were stayed, pending the determination of pending appeals, first to this court and then to the Supreme Court in lead cases ultimately decided in February 2017, to which the reference of the Supreme Court judgment is R (MM (Lebanon) & ors.) v SSHD [2017] UKSC 10.[6]Subsequent to the Supreme Court judgments permission to appeal was granted in each of the cases by Sir Ernest Ryder (Senior President of Tribunals) on 15 February 2018. (B) Facts of the two Appeals and the Tribunal Decisions The First Appeal[7]MS is a male national of Pakistan born on 26 January 1986. His sponsor, Ms B entered the United Kingdom on 29 August 2001, with leave to enter as the spouse of a British citizen. She subsequently also became a British citizen. She later divorced from her first husband, with whom she has two children, at the relevant time aged 9 and 5 respectively.[8]In August 2012 Ms B obtained employment with Derbyshire Care Services, having had no other employment in the 12 months immediately preceding MS’s application for leave to enter. On 26 November 2012 Ms B and MS married in Pakistan. In December 2012 MS applied for entry clearance as the spouse of a British national. It was that application that was refused by the ECO on 6 March 2013. The ECO decided that the MIR had not been met.[9]In its decision of 14 February 2014, the FTT decided that the MIR had not been met as Ms B had not earned £18,600 in the 12 months preceding the ECO’s decision. It was found that the payslips for the four months which she had been able to supply, relating to the four months preceding the application, equated to annual income between £16,460 and £22,000. Under the rules prevalent at the time, annual income was calculated by reference to the lower of these two figures. However, following the High Court decision of Blake J in MM [2013] EWHC 1900 (Admin) and taking into account fuller background facts, the FTT held that MS appeal should be allowed on the basis that refusal of entry clearance amounted to an unjustified interference with the right to respect for family life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.[10]The FTT judge recorded the submission on behalf of MS that Ms B, as sponsor, had received bad advice and that, if properly advised, she would have waited and would have produced documents satisfying the MIR. It was acknowledged by counsel for MS before the FTT, (not Mr Muman or Mr Green who appeared for MS before us) that if Ms B had submitted these materials in a new application it would have succeeded. It was submitted, however, that MS and his sponsor should not have to go through the expense and procedures again.[11]The FTT found that, “…the likelihood was that the couple would in the medium term earn significantly more than £18,600 between them given [MS’s] desire to work and the fact that [Ms B’s] earning capacity was likely to increase.” Accordingly, the ECO’s decision was, in the FTT’s view, “…disproportionately harsh and disproportionate [sic] …and that it is disproportionate for the family to be further separated and it is not in the interests of [Ms B’s] children who should be forming a relationship with their stepfather…” The judge said (a little later) that, “I do not consider it reasonable to expect the sponsor and her British children to uproot themselves to Pakistan. The point as explained in MM is that it is disproportionate to require sponsor in these circumstances to abandon the right of residence which she has as a British citizen simply because she has married a foreign national, in circumstances where her salary is more than equivalent to a full-time minimum wage salary and she is in a position to maintain the appellant. In other words following the approach in MM there are compelling circumstances not sufficiently recognised under the rules in a case such as this.”[12]The UT dismissed the SSHD’s appeal, holding that, “In considering human rights issues the judge was entitled to place reliance upon the High Court case in MM …as that decision was then, and is now, relevant to the financial circumstances of this case even if leave to appeal it has been granted. In making her decision the judge was therefore entitled to conduct an analysis of the financial evidence put before her even if it did not meet the specific requirements of the Immigration Rules. On this basis the family income for the appellant evidently fell above the minimum income level suggested in MM of £13,400.” The Second Appeal[13]TD and her son, X, are Jamaican nationals. TD first formed a relationship with X’s father, G, their sponsor, in about 1995. G was also originally of Jamaican nationality. G first entered the UK as a student and was granted indefinite leave to remain in 2007 on the basis of his family life with a different partner. However, TD and G married in Jamaica in 2012. TD and X applied on 27 July 2012 for entry clearance as the partner and dependent child respectively of G. The applications were refused on the basis that the MIR were not met. G needed a gross income of £22,400 (£18,600 (basic) + £3,800 for the first dependent child, i.e. X). G had failed to supply the supporting documentation to demonstrate his income as a self-employed plasterer and in respect of his income as a soldier in the Army reserves. Further, the ECO did not accept that G and TD were in a genuine relationship.[14]The FTT accepted, however, that there was a true relationship between TD and G and he produced documentation evidencing income, first of £16,659 for the year to 5 April 2012, and secondly, for the period thereafter to the date of the hearing in September 2013, of £35,857. Of course, for the ECO the relevant income was in the periods up to the time of his decision, not that which could be shown in the subsequent period up to the hearing in the FTT.[15]The FTT found that the appeals had to fail when assessed under the IR and said that they then had to be considered on human rights grounds. Reliance was again placed upon the decision of Blake J in MM “which found that the maintenance requirements were unjustified and disproportionate in terms of article 8 assessment…”. The judge held that, “17. Although the rules under which the appellants were refused have a legitimate aim and are rationally connected with the pursuit of that aim, I would follow the decision in MM to conclude in this case that the interference the application of the rules (sic) is not justified in this case, insofar as it prevents family life in circumstances where the family of a British citizen would in fact be adequately provided for and would not fall back on public funds. 18. On the question of proportionality (the heart of this assessment), for the balancing exercise, it is highly relevant if in fact it can be shown that the appellant’s (sic) would have available to them income at a level equivalent to the income support level appropriate to their status: in this case that the family would have available to it support equivalent to a couple with one child…”.[16]The FTT also held that the ECO had not engaged properly with the fact that G was a serving reserve soldier awaiting deployment in Afghanistan, deployment which had been delayed because he had not “sorted out the status of his wife and children”. The judge noted that his Army regiment supported the entry clearance applications accordingly. The delay in G’s deployment was held by the judge to be “self-evidently … not in the public interest”.[17]In considering section 55 of the Borders Citizenship and Immigration Act 2009 (need to safeguard and promote the welfare of children who are in the United Kingdom), the judge said, “I note that [X] has never really lived with or known his father. The continuation of this separation, which has not been of his doing, can only militate against [X] forming a close bond with his father. The absence of a father figure in the life of the appellant is a matter which cannot be said to be in his best interests, where this is available. His needs are best met by him living with his parents…”.[18]On all the evidence the FTT accepted that G had sufficient income to be able to look after his family and to secure accommodation for them. His income was adequate at well over the required threshold.[19]In its decision in this case on the appeal from the FTT, the UT said little more than that the evidence before the FTT had justified its conclusion in the case.

(C) The Appeals in this Court

[20]Before turning to the substance of the appeals, I would note that a preliminary point was raised in the respondents’ written arguments in each case that the SSHD’s Appellant’s Notice was filed out of time and that the grant of permission to appeal by Sir Ernest Ryder did not obviate the requirement that the SSHD should apply for the necessary extension of time before the appeal could be heard on its merits.[21]In this regard, Mr De Mello for the Respondents in the Second Appeal referred us to SSHD v Razia Begum [2016] EWCA Civ 122, AM (Pakistan) v SSHD [2017] EWCA Civ 122 and KM (Bangladesh) [2017] EWCA Civ 437. At the commencement of the hearing the point was abandoned by the respondents, after some time had been spent by the court, in advance of the hearing, in considering it. The point was wholly without merit and it is unfortunate that it was raised at all. I turn, therefore, to the substance of the appeals.[22]In each of the appeals, Mr Payne for the SSHD argues that the decisions of the Tribunals were wrong, particularly in the light of the reversal by this court of Blake J’s decision in MM ([2014] EWCA Civ 985) and having regard to the limited extent to which the appeal to the Supreme Court was allowed in that case.[23]In MM Blake J had held that, when applied to the cases before him concerning partners of recognised refugees or British citizens, the MIR were so onerous (in effect) as to constitute an unjustified and disproportionate interference with their rights to respect for family life and so fell outside the margin of appreciation afforded to the SSHD.[24]The crux of Blake J’s decision can be seen from two passages at paragraphs 119-120 and 122 of his judgment as follows: “119. Although there may be sound reasons in favour of some of the individual requirements taken in isolation, I conclude that when applied to either recognised refugees or British citizens the combination of more than one of the following five features of the rules to be so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship. In particular that is likely to be the case where the minimum income requirement is combined with one or more than one of the other requirements discussed below. The consequences are so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim. 120. The five features are:(i) The setting of the minimum income level to be provided by the sponsor at above the £13,400 level identified by the Migration Advisory Committee as the lowest maintenance threshold under the benefits and net fiscal approach: conclusion 5.3. Such a level would be close to the adult minimum wage for a 40-hour week. Further the claimants have shown through by their experts that of the 422 occupations listed in the 2011 UK Earnings Index, only 301 were above the £18,600 threshold.(ii) The requirement of £16,000 before savings can be said to contribute to rectify an income shortfall.(iii) The use of a 30-month period for forward income projection, as opposed to a 12-month period that could be applied in a borderline case of ability to maintain.(iv) The disregard of even credible and reliable evidence of undertakings of third party support effected by deed and supported by evidence of ability to fund.(v) The disregard of the spouse’s own earning capacity during the 30-month period of initial entry. … 122. Nevertheless, to set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household without dependent children.” (i) The setting of the minimum income level to be provided by the sponsor at above the £13,400 level identified by the Migration Advisory Committee as the lowest maintenance threshold under the benefits and net fiscal approach: conclusion 5.3. Such a level would be close to the adult minimum wage for a 40-hour week. Further the claimants have shown through by their experts that of the 422 occupations listed in the 2011 UK Earnings Index, only 301 were above the £18,600 threshold. (ii) The requirement of £16,000 before savings can be said to contribute to rectify an income shortfall. (iii) The use of a 30-month period for forward income projection, as opposed to a 12-month period that could be applied in a borderline case of ability to maintain. (iv) The disregard of even credible and reliable evidence of undertakings of third party support effected by deed and supported by evidence of ability to fund. (v) The disregard of the spouse’s own earning capacity during the 30-month period of initial entry. …[25]This court reversed that decision. The court concluded that the decision of Blake J, that the MIR were, in principle, incapable of being compatible with the article 8 rights of partners of UK citizens and refugees, was incorrect.[26]On further appeal to the Supreme Court by the applicants for entry clearance, the court held that the MIR pursued a legitimate aim, which justified interference with article 8 rights, namely ensuring that a family had sufficient resources without needing to have recourse to welfare benefits and it could not be said that a lower income threshold should have been adopted. The fact that the MIR might cause hardship in some cases did not make it incompatible with the ECHR or unlawful at common law. The court held, affirming the Court of Appeal, that the MIR were acceptable in principle as properly to be taken into account in striking a fair balance between individual interests and the public interest when considering such applications. Failure to meet the MIR did not lead to automatic rejection of an application as the SSHD had a discretion to grant entry clearance outside the provisions of the IR.[27]However, the appeals were allowed in part because, while the MIR were not open to challenge, they were not a complete code (see para. 20), and separate regard had to be given in particular to the requirements of s.55 of the 2009 Act. It was found that guidance given to caseworkers by the SSHD did not adequately reflect that gap left by the MIR. Clearer guidance was required as to the need to treat the interests of children as a primary consideration. In general, and in particular where children were involved, a broader approach might be required in drawing a fair balance between individual interests and the public interest. The SSHD’s policy objectives could be taken into account and in judging whether the requirements were met tribunals were not precluded from taking into account other reliable sources of earnings or finance.[28]In a parallel appeal, decided at the same time as MM (the case of SS (Congo)), the Supreme Court held that, in view of the FTT’s findings in that case that there were insurmountable obstacles to the claimant and her husband living together in their country of origin (whose nationality the claimant still held) and that there was nowhere else for them to go, it was necessary to weigh those aspects of the case against the evidence as to the couple’s ability to support themselves in this country. The court allowed an appeal by the claimant against this court’s decision reversing decisions of the FTT and UT that refusal of entry clearance on the basis of the MIR had an unjustifiably harsh consequence for her family life, justifying exceptional treatment outside the IR.[29]Mr Muman and Mr Green place strong reliance upon the decision in the SS (Congo) case in their argument for MS in the first appeal.[30]Mr Payne, for his part, places strong reliance upon the Supreme Court’s clear adherence to the broad principles emerging from the decision of the Grand Chamber of the European Court of Human Rights in Jeunesse v The Netherlands (2014) 60 EHRR 17 and upon the passage of the Supreme Court’s judgment in paragraph 41 as follows:
“41. There is no general obligation to respect a married couple's choice of country in which to reside or to authorise family reunification. It will depend upon the particular circumstances of the persons concerned and the general interest. Factors to be taken into account are the extent to which family life would effectively be ruptured; the extent of the ties in the host country; whether there are “insurmountable obstacles” (or, as it has sometimes been put in other cases, “major impediments”: see, for example, Tuquabo-Tekle v The Netherlands [2006] 1 FLR 798 , para 48; IAA v United Kingdom (2016) 62 EHRR SE19 , paras 40 and 48) in the way of the family living in the alien's home country; and whether there are factors of immigration control (such a history of breaches of immigration law) or public order weighing in favour of exclusion: para 107. If family life was created at a time when the people involved knew that the immigration status of one of them was such that persistence of family life in the host state would from the outset be precarious, “it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8.”
[31]It has to be noted, however, that in practically the same breath (or, perhaps one should say, the same strokes of the keyboard) the Supreme Court said that in Nunez v Norway (2011) 58 EHRR 17 the interests of children had “tipped the balance” and went on to quote paragraph 109 of the judgment in the Jeunesse case as follows:
“Where children are involved, their best interests must be taken into account. On this particular point, the court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it.”
[32]Mr De Mello, for TD and X, submits that the Tribunal decisions in their case correctly gave proper regard to the interests of the child, X, and struck a correct proportionality balance, irrespective of the reliance on the judgment of Blake J in MM. Therefore, the decision on proportionality by the FTT would inevitably have been the same. There was, therefore, no material error of law in the decisions below.[33]Mr Payne argues that the thrust of the proportionality analysis conducted by the FTT, in the TD/X case, was dictated by the approach adopted by Blake J in MM and that it cannot be reliably said that the proportionality approach would properly have been the same without that factor. The FTT judge, he says, effectively ruled out the SSHD’s policy assessment of the minimum income requirements and had found that it was “highly relevant” that income equivalent to income support level would be available to the family. That was wrong. He argues that there were other errors in the proportionality assessment, such as the emphasis placed upon the sponsor’s situation as a reserve soldier and the effect on his overseas deployment; thus, while the concern for the investment in his military training was understandable, it was over emphasised in consideration of the “family life” in this case. Moreover, the FTT judge had failed to weigh up the time (likely to be short) that would be taken, in the making of a fresh application, against the fact that X had never lived with his father. It was not, therefore disproportionate to refuse entry clearance for such a relatively short time.[34]As I have said, counsel for MS places reliance upon the decision of the Supreme Court in SS (Congo) heard in parallel with the MM cases.[35]SS was a citizen of the Democratic Republic of Congo (“DRC”) and was resident there. NT was also originally from DRC but had been granted refugee status in this country and, subsequently, in 2006, British nationality. He also had two children who were British citizens. He met SS in 2010, on one of his visits to the DRC, and they married in December 2012. NT presented income figures that did not satisfy the MIR but which were above the level of the minimum wage. SS had suffered a miscarriage which had left her traumatised and needing to be addressed by being reunited with her husband, NT.[36]The FTT found that the couple could not live together in DRC and that there were insurmountable obstacles to that result being achieved – a finding which the Supreme Court said was “crucial”, but also “a little surprising”, no doubt because of NT’s various visits to DRC notwithstanding the established fear of persecution in that country which had led to his obtaining refugee status. The FTT found that the couple faced the prospect of being able only to spend short periods of time together if SS’s entry were not permitted.[37]The UT upheld the FTT’s decision, based as it was upon the decision of Blake J in MM and the overall proportionality assessment under Article 8. The Court of Appeal allowed the ECO’s appeal in view of the Tribunals’ reliance upon the decision of Blake J and upon the “near miss” aspect of NT’s failure to meet the MIR. The court held that the Tribunals had failed to identify compelling circumstances requiring the grant of leave to enter.[38]The Supreme Court took a different view. At paragraph 106 of the judgments, Baroness Hale of Richmond and Lord Carnwath said:
“106. Even if the tribunal's adoption of the guide figure of £13,400 was misdirected, that should not be determinative. In the unusual circumstances of this case, after long delay due to legal arguments which were of no direct concern to the applicants, it would be unfair to subject them to the uncertainties of a rehearing unless there were substantial grounds for thinking that a different result would be reached. That is far from the case. The considerations listed above provide ample support for the conclusion reached by the First-tier Tribunal, and for the view of the Upper Tribunal that any legal errors were not material.”
They added at para. 107:
“107. It is no doubt desirable that there should be a consistent approach to issues of this kind at tribunal level, but as we have explained there are means to achieve this within the tribunal system. As was said in Mukarkar v Secretary of State for the Home Department [2007] Imm AR 57, para 40 (per Carnwath LJ): “It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case … The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law … Nor does it create any precedent, so as to limit the Secretary of State's right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected.” “It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case … The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law … Nor does it create any precedent, so as to limit the Secretary of State's right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected.”
[39]Mr Muman for MS submits that the SS case is “on all fours” with that of MS and points out a number of factors which show both that there was no material error of law and that any remission of this case to the Upper Tribunal now would not lead to any different result.[40]In particular, Mr Muman highlights these features of the FTT’s decision in the present case:(i) Ms B could maintain MS on her salary;(ii) MS was working in Pakistan and had sufficient experience to obtain employment in this country;(iii) in the medium term the couple would earn significantly more than the MIR;(iv) it was disproportionate for the family to be further separated and that was not in the interests of Ms B’s children who should be forming a relationship with their stepfather, MS;(v) the children stood to benefit from a father figure in the family and would benefit indirectly from the support given to their mother by MS;(vi) it could not be said that the further separation would only be of the order of a couple of months or a few months.[41]Mr Payne resists these arguments. He submits that SS is readily distinguishable. It was a case in which insurmountable obstacles to a joint life for the couple in DRC had been firmly established. There was no prospect of NT ever earning sufficient to satisfy the MIR, even if a new application had been made. In contrast, MS’s case was one where the very case made for him was that his sponsor had been badly advised to make a premature application a matter of days after marriage when it was clear that a little while later an application was likely to have satisfied the MIR. There was, therefore, no real prospect of the type of long term separation that had appeared to be likely in the SS case. Here, the FTT had quite simply based its decision squarely upon the Article 8 approach adopted by Blake J in MM and it cannot be said that, absent that approach, the result would have been the same.[42]We heard submissions from all parties as to the impact of the IR, in their various constantly changing forms, and as to what Mr Payne submitted was the precarious status of the family lives of respondents as applicants for entry with no settled immigration status. It seems to me, however, that the crux of both these appeals centres upon what all parties agree was (with hindsight) the misplaced reliance of the FTT judges upon Blake J’s judgment in MM which those judges, quite properly, followed in the state of the law as they understood it to be.[43]It seems to me that the cornerstone of both FTT decisions was indeed the judgment of Blake J. It did dictate their approach to the entire proportionality exercise and it would be very unsafe for us to “second guess” what the approach of the Tribunals would have been on the basis of the law as explained by the Supreme Court in SS – and one might add in the light of the further Supreme Court decision in R (Agyarko) v SSHD [2017] UKSC 11, handed down on the same occasion, as the decision in MM/SS, by the same judges.[44]In my judgment, the decisions of the Tribunals in these cases involved errors of law, of which those Tribunals were understandably unaware, and that those errors were clearly highly material to those decisions. I would, therefore, allow these appeals and would remit both cases to the UT for consideration afresh. I consider that it should be for that Tribunal to give directions as to the appropriate evidence required and as to any other procedural matter, as may appear to the UT appropriate. The question of whether the cases should go to the FTT, rather than to the UT, was canvassed briefly before us and, as I understood it, it was common ground that, if remission were to be ordered, it should be to the UT. For my part, I agree with that common ground, in view of the complex history of the cases and the materially new understanding of the law that has emerged from the recent decisions in the Supreme Court.[45]I would not wish to leave the case without saying that I am surprised that, in neither of these cases, did the respondents submit fresh applications for entry clearance, after the initial refusals, when it appeared clear that both applications had been premature and that very shortly thereafter the MIR would have been satisfied. It is of note that in the MS case at least the SSHD suggested such a course in May 2015 (after the Court of Appeal’s decision in SS (Congo)), admittedly at the same time proposing that her appeal should be allowed and that the respondents should pay her costs. Of course, in SS (Congo) in the end the Supreme Court allowed the appeal and at that stage (in February 2017) MS’s solicitors for their part invited reconsideration of his case by the SSHD, but without proposing that their client should make a fresh application from which such reconsideration would follow. It seems to me that, at either of these stages, a fresh application (with a stay of proceedings in the meantime) might have saved what we are told were the substantial costs that have been incurred in this litigation.

(D) Conclusion

[46]For the reasons given, therefore, I would allow both these appeals and would remit both cases to the UT for reconsideration.

Lord Justice Lindblom:

[47]I agree that these appeals must be allowed, for the reasons given by McCombe L.J. I would echo what he has said about the opportunity for fresh applications to be made in cases such as these. It is difficult to see why that opportunity was not taken by the respondents here. If this had been done, a good deal of cost, delay and uncertainty might have been avoided, and these appeals might not have been necessary.

Lord Justice Kitchin:

[48]I also agree that the appeals must be allowed for the reasons given by McCombe LJ.