Stopping deportations

This video had me crying my eyes out.  The courage shown by this woman, despite being harassed by others - to stand up for what is right - is humbling.

I hope that were I or any of you readers to ever be on a plane where a forced deportation was taking place, we would also do the right thing.  I am beyond impressed.

Settlement Scheme

After months of various MP's speaking of the settlement scheme it was their intention for EU citizens and their family members - including those who fall under Surinder Singh - to use to legitimise their ongoing stay in the UK, we have finally received a little bit of clarification as to what this scheme entails:

"As Brexit negotiations continue, this is the latest information on the status of EU citizens in the UK and how you are affected.

You may have seen this week that the UK and the EU have now reached an agreement on what happens during the period immediately after Brexit, known as the implementation period. This is important as it will give citizens and businesses on both sides time to adjust before a new relationship with the EU is agreed. 

So, what has been agreed so far and how will you be affected?

EU citizens currently in the UK

The agreement on citizens’ rights reached in December has now been formalised into a draft Treaty text, meaning it is in the right form to be written into law.

The agreement means that if you are an EU citizen living in the UK before the UK leaves the EU on 29 March 2019 you will be able to continue to live and work in the UK. Your rights to healthcare, work arrangements and access to benefits will continue. Also, your existing close family members will be able to join you in future in the same way that they can now. 

You can read more here: Status of EU citizens in the UK: what you need to know.

From this week, EU citizens in the UK have been seeing digital adverts encouraging you to ‘stay informed’. The activity is part of an ongoing effort by the Government to build awareness about the agreement to protect EU citizens’ rights ahead of the roll-out of the settlement scheme. As a member of this mailing list, you will continue to receive the latest information on how you are affected and what action you will need to take in future. 

Settlement scheme

If you are an EU citizen or family member already living in the UK, a user-friendly scheme to enable you to secure your settled status here will open later this year. But there is no rush – you will have up until 30 June 2021 to make your application.

We will provide more information on the scheme and how to apply in the coming months. 

You do not need to do anything further at this point.

Implementation period

The agreement we reached with the EU this week extends the citizens’ rights protections above to include EU citizens and their family members arriving in the UK during the implementation period (from 30 March 2019 to 31 December 2020). This ensures that those planning to come to the UK after March next year know what the arrangements will be. During this time, new arrivals will need to register through a new Home Office registration scheme after three months in the UK. 

More information is available at UK leaving the EU: what you need to know."

Why does UK appear to be having such a hard time in Brexit negotiations?

Ron Mathot, a lecturer at Amsterdam University of Applied Sciences, has provided his view on the Brexit negotiations in response to a question on Quora.

It is very telling - and embarassing - that the position of UK politicians has been so unrealistic to begin with.

Settled status scheme for family members of Surinder Singhers ?

A freedom of information request by Claire, who has alerted BritCits to the response she received indicates Home Office 'intends' for family members of British citizens, here on the basis of having previously exercised free movement rights in another member state (Surinder Singh), to be eligible for UK's settled status scheme.

An intention isn't a commitment.  Given however that Phase 1 of the Withdrawal Agreement excludes family members of Surinder Singhers, this is some positive news.

What is the settled status scheme?  Our understanding is that this allows those who have lived in the UK for five years as at Brexit day, within the rules, to apply for permanent resident status.  For those who haven't quite reached the five year point on Brexit day, they will have the opportunity to apply for this status when they reach the five year point.

The details of this are not known; costs expected to be no more than that for a UK passport.

An extract of the response to the FOI request is shown below.  The full request is available here.

Withdrawal Agreement - Phase One

Withdrawal Agreement - Phase One

There is a lot of angst amongst EU and British citizens who have exercised their treaty rights to be in the UK with their family.  This is especially so for the family of Surinder Singhers who will reach the point of five years of residence after we exit from the EU.  

Hence, protection in the agreement UK and EU reach is important to ensure this group does not find itself in no man's land - like the family members of other EU citizens, this group too needs to be assured of a continuous right to stay.

BritCits has received several pieces of communication from the European Commission, Europe Direct Contact Centre and even their MP's on this issue - thank you to the lovely members who have shared this with us. 

This letter dated 10 August 2017, from former Immigration Minister, Brandon Lewis, sent to the constituent MP of a member, indicates that the UK government's proposal was for the family members of EU nationals, which includes British citizens, to be able to obtain settled status after five years.

It appears that the first phase of agreement reached excludes Surinder Singhers - this was confirmed in a letter sent on behalf of Michel Barnier:

A member also forwarded an email she received on 6 February 2018 which has more detail, especially at the links provided:

" Thank you for contacting the Europe Direct Contact Centre.
 
In response to your inquiry, we inform you that the overall objective of the Withdrawal Agreement with respect to citizens' rights is to provide reciprocal protection for Union and UK citizens, to enable the effective exercise of rights derived from Union law and based on past life choices, where those citizens have exercised free movement rights by the specified date (time of the UK's withdrawal - foreseen on 29 March 2019 unless the negotiation period of two years is extended by unanimous agreement of the European Council and the United Kingdom). This is a limited personal scope, which is the necessary consequence of the legal basis for this disentanglement process as set out in Article 50 TEU. UK nationals in scope of withdrawal agreement have protected rights in the state(s) in which they have residence rights on exit day, without prejudice to Social Security rights.
 
The common understanding reflected in the Joint Report means that both Union citizens and United Kingdom nationals, as well as their respective family members can continue to live, work or study as they currently do under the same conditions as under Union law, benefiting from the full application of the prohibition of any discrimination on grounds of nationality. The only restrictions which apply are those derived from Union law. Those who have not yet acquired permanent residence rights – if they have not lived in the host State for at least five years –will be fully protected by the Withdrawal Agreement, and be able to acquire permanent residence rights also after the United Kingdom’s withdrawal.
 
The deal should protect all those family members who have lawfully resided with an EU citizen in the UK before Brexit. They will be allowed to stay but will have to apply for a new UK status (special status) and a new UK residence document.
 
Full details of the Commission's assessment are available in the Commission's Communication on the State of Progress of the Negotiations with the United Kingdom (https://ec.europa.eu/commission/sites/beta-political/files/1_en_act_communication.pdf) as well as in the joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union (https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf).
 
Questions and Answers – the rights of EU27 and UK citizens post-Brexit, as outlined in the Joint Report from the Negotiators of the European Union and the United Kingdom Government can be downloaded here: https://ec.europa.eu/commission/sites/beta-political/files/2017-12-12_qa_citizens_rights_1.pdf
 
The latest information on the ongoing Article 50 TEU negotiation process and principles for the United Kingdom's departure from the European Union can be obtained under the following link: https://ec.europa.eu/commission/brexit-negotiations_en#latest
 
Furthermore, you can contact the authorities in the UK to clarify the status of your husband - https://www.gov.uk/guidance/status-of-eu-nationals-in-the-uk-what-you-need-to-know#agreement-on-rights-for-eu-citizens-and-their-families / https://www.gov.uk/government/organisations/department-for-exiting-the-european-union
 
We hope you find this information useful. Please contact us again if you have other questions about the European Union, its activities or institutions."

A British citizen who raised his concern over the plight of Surinder Singhers directly with the Home Office got this reply on 9 February 2018:

 

 Communications between one of our member's and her MP, Anna Soubry, and that between Anna Soubry and Robin Walker, the Minister responsible for citizens rights' in the Department for Exiting the European Union.

 

Transitional Protection - EEA Regulations

Transitional protection 

November 2016 saw some significant changes being made to the EEA regulations, with more detail on the genuine and residence test, and requiring the British citizen sponsor to show they remain a qualified person.

However, as there was some transitional protection afforded to those who had made an application for a Residence Card, or had been issued with one, before 1 January 2014 (among other things), there continues to be transitional protection for those who:

• had a right of permanent residence in the UK on 31 December 2013
• had a right of residence in the UK on 31 December 2013 and either
• held a valid registration certificate or residence card or EEA family permit issued under the 2006 regulations
• had made an application under the 2006 regulations for a registration certificate or residence card or EEA family permit which had not yet been determined
• had made an application under the 2006 regulations for a registration certificate or residence card which had been refused and in relation to which an appeal under regulation 26 could be brought whilst the appellant was in the UK (excluding out-of-time appeals) or an appeal was pending 

If nothing happens such that it would trigger the end of this transitional protection, then for those with transitional protection, the genuine residence test (akin to the Centre of Life test brought in from 1 January 2014) is assumed to be satisfied.  

There is also some protection for those who were issued with a residence card before 25 November 2016, such that the British citizen sponsor is assumed to be a qualifed person until that date but will need to show their activity, and possibly that they've taken out Comprehensive Sickness Insurance for their family member(s), since that date.  The requirement for the British citizen to show they are a qualified person in their own country is in breach of case law, however this is how UK is currently processing applications.

It is worth reading the guidance on Free movement rights: family members of British citizens on this yourselves to understand what evidence you will need to collate and submit.  Do read the whole document although the elements picked out above are at pages 28-30. 

 

Trade deals at risk because of Brexit

Trade deals in jeopardy - thank you Brexit!
 Finally, some honesty and realism from Theresa May's government, with her ministers admitting that almost sixty five existing trade deals with non-EU countries are now at risk because of Brexit.

This is in stark contrast to the promises made by Liam Fox and other Leave campaigners who indicated that as soon as we had voted to leave, we'd have other trade agreements almost instantaneously lined up.  In fact, it's far from it.

Reports suggest that countries like Australia and India may be open to trade agreements for more - wait for it - relaxed immigration, or even free movement!  No prizes for guessing for how Brexiteers will feel about this if such a deal is made - it will though give them foreigners, albeit not EU citizens, to blame traffic, queues, heck, maybe even the weather on.

Women power

Women power

With Gerry Adams resigning from his role in Sinn Fein, all ruling parties in the UK are now led by women.

Northern Ireland - Mary Lou McDonald for Sinn Fein and Arlene Foster for DUP
Scotland - Nicola Strugeon for SNP
Wales - Leanne Wood for Plaid Cymru
England/UK - our very own TM for the Conservtive Party.

A wonderful coincidence in the year that represents 100 years since women (not all, but some!) first got the vote in this country.

The Common Travel Area

The Common Travel Area

The Common Travel Area is an open borders area between UK and Ireland.  This confers a right to travel between the two countries without needing a separate visa for nationals of these two nations, even aside from our status as an EEA member state.

There is considerable uncertainty now over what will happen between Ireland and Northern Ireland now - will there in fact be a border?  CTA is independent of the EU, and critical to peace in the region, so many expect it will remain.

However, if there is no customs agreement or arrangment or whatever other word Theresa May wants to call it, Downing Street recently confirmed there won't be, then it means we do not have a frictionless trade agreement with EU.  As long as Ireland remains a member of the EU, this therefore poses a problem.

The latest on the Irish government's website is the following - note the 'at this time'.  Hmmm.

Brexit and its impact on UK regions

Brexit and its impact on UK regions

It's official.  There is no region in the UK that will not be worse off as a result of Brexit.

Source: Twitter

What is disappointing, thought not surprising, is the Tories are scrambling over each other to refute these figures - despite that they are the result of analysis undertaken by multiple government departments - which incidentally one of their own stood up in parliament and liked about.  

The latest on this heard from Downing Street is that the figures above are actually 'provisional'.  Fair enough.  That leaves open the possibility though that the impact from UK leaving the EU might actually be worse than that modelled when the figures are, um, finalised.

It is a strange irony that those regions which voted Leave are the ones likely to be worse off.

What the above figures can never however capture is the non-monetary value of EU membership.  Our being free to live, work, study and retire in another member state, without going through a complicated or expensive visa process.  The pride that came from knowing we were a part of something bigger and better. Not perfect - but definitely better.  That so many are losing their status as an EU citizen against their will is shameful and something no doubt will be regretted for a lifetime.

There is a case going to the courts on this last issue - can our citizenship rights be stripped from us without our consent? Worth keeping an eye on this.

Adult Dependant Relative judgment

Yesterday the Court of Appeal handed down judgment on our Adult Dependant Relative case.  These relate to rules for British citizens, residents and refugees to sponsor, as it says on the tin, an adult dependant relative.  Historically, ADR have for the most part been parents.  The rules pre 9th July 2012 allowed for sponsorship of those ADR who were aged 65 or over and were financially dependent on the sponsor, unless there were exceptionally compassionate circumstances, in which case younger ADR move to the UK too.  The sponsor was required to evidence they could afford to look after their ADR without recourse to public funds.  Fair enough.

However, as Home Secretary our favourite politician undertook a consultation.  The questions nor the answers of which supported what she put in place - a ban masquerading as a rule, as parliamentarians have called these ADR rules.  Why?  Because meeting one part of the rules means not meeting another part of the rules.

The ADR must now be unable to dress or bathe themselves - so super elderly or severely disabled.  TM does not want healthy ADR to come to UK.  Yet she claims her reason for these rules is to protect the NHS.  Completely nonsensical.  She rejected requiring ADR to have private health insurance, or for sponsors to provide a financial guarantee that their ADR won't become a burden on the state.  This is because the ever generous TM claims to not want to restrict family migration only to the rich.  Yes, WTF is exactly what I nearly yelped out when the Home Office lawyer made this outrageous excuse on behalf of his client.

Additionally, even where say the ADR is so physically infirm that they can't bathe or dress themselves (in which case would they really be able to take a long-haul flight since remember TM doesn't want to restrict family migration to those who can afford private planes with full-time nursing staff), one must show there is no one in the home country who can reasonably provide care instead of the UK sponsor.  This includes 1) other children and grandchildren 2) siblings or other family 3) neighbours 4) help - paid or unpaid, by sponsor, ADR or the government in the ADR's home country) 5) old people's homes.

And if the above are satisfied, then the sponsor must also evidence and sign an undertaking that they and the applicant together have the means to pay for the ADR's care, accommodation and maintenance in the UK without recourse to public funds, but those funds are not sufficient in the ADR's country.  So you know, maybe if the ADR is from Monaco the rules could be met.

Oh and say your mother re-married and your stepfather raised you.  Even if your mum miraculously satisfies all the criteria, she won't qualify because she is in a relationship with someone who is not your biological parent - even where he fulfilled all parental duties.  This wasn't raised in court though I think it's an important point - not one that affects any cases I have come across though. 

The word 'reasonable' is given a lot of weight by the judges, not quite comprehending despite our attempt to evidence as such, that Home Office does not process applications reasonably.  The judges seemed more concerned about the situation where the ADR has a child in the home country who 'pretends' to be estranged from the ADR so that the ADR can be sponsored by the child in the UK. This is despite even the Home Office not claiming that the old rules were open to abuse.  Sigh.

Much, so much, hinges on this misguided belief that family life is more likely to not be engaged, than engaged, between an adult child and their parents. It's unfreakingly bizarre and makes me wonder whether the judges are not close to their own parents, or their own adult children. 

I am critical of the judgment.  Obviously.  But it's not a case of sour grapes.  The judges took Home Office's claims as gospel. The figures on the cost of NHS and social care.  Their stats on grants - their lawyer didn't even know whether the stats were just those within the rules or those outside of it.  He had to go get this checked - while in court, despite countless attempts by us to get this info earlier, and we did get on record that we do not believe their figures.

The judges say at para 62 "...Guidance gives a number of example scenarios in which the SoS accepts that a dependant applicant can meet the criteria in the new ADR Rules."  Untrue.  The guidance actually gives examples which 'could' meet the criteria if they also meet other elements of the criteria - which is the entire problem.  The criteria is contradictory.  Have a read of the guidance yourself here.  Bear particular attention to the Afghanistan example.

There is a (tiny) plus though.  At para 59, the judges concede "It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country.  Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care.  They are capable of embracing emotional and psychological requirements verified by expert medical evidence.  What is reasonable is, of course, to be objectively assessed."  This mention of emotional and psychological care should help some families as the guidance and the rules are actually silent on this.

I shouldn't be so disappointed because the judgment isn't a surprise.  The hearing was tough.  Court of Appeal is known for being less, um, 'friendly' than the High and Supreme Courts.  We possibly didn't have ideal panel of judges, given the combination of Master of the Rolls, Lord Justice and Lord Sales.  Actually given the judgment, we definitely didn't!

One of our barristers is going to write a note on the judgment so I will leave the legal analysis to him and share the note in due course. 

So what's next?  We have applied directly to the CoA for for permission to appeal further up.  They however pretty much never cede this. We then have 28 days from judgment date to apply to the Supreme Court.  Will we get permission? If so, can we afford to proceed?  Only time will tell.  If there is a change in government next month, then perhaps these are all moot points.  Yes I know what the polls are saying but they've been wrong before.  One can but hope.  The experience of the courts in MM and now ADR suggests we may have to rely on politicians rather than courts to throw out rules intent on breaking up families and forcing Brits out of the UK.  The fifth anniversary of the rules is coming up under a third government.  It's time for a change.

You can read the entire approved ADR judgment here.

ADR and MM

The below has been adapted from BritCits' newsletter:


ADR
So the Adult Dependant Relatives hearing - our legal challenge of the rules which have been deemed even by parliamentarians as a 'ban masquerading as a rule' is to be heard at the Court of Appeal this week, Wednesday and Thursday.  All are welcome to attend - really and truly, the more the merrier.  Court of Appeal is part of the Royal Courts of Justice, Strand (London).

The arguments are likely to be from 11-1, and then 2-4.  The hearing may start as early as 10am though, but is unlikely to finish much later than 4.  After each day of the hearing, there will be a congregation in Knight's Templar on Chancery Lane, for those who wish to discuss how the day has unfolded.

This comes at a fitting time since just this weekend I had a revelation that a huge percentage of the people I love are, well, old.  Makes this whole ADR hearing so important, as these rules are most detrimental to people at a time of vulnerability not seen since their childhood.

We are still fundraising to cover the costs of this hearing - donations welcome here.

MM
On the day of the judgment, one of the lawyers told us that the Home Office had 56 days to submit the proposals to address what the Supreme Court had deemed unlawful.  That period came and went, and yet, nothing.  I came across a document which suggested that changes might be delayed the other side of the election - frankly, bonkers I thought, as the Supreme Court had spoken and politics should not get in the way.

So I checked with, well, the Supremes.  The message is that as per paragraph 110 of Lady Hale's judgment, the Home Secretary was directed to submit 'how she proposes to amend the instructions or other guidance to accord with the law...'. 

Home Office has now made its submissions, but not all of the appellants have yet filed their submissions on the HO's proposals.  Once that is done - it may be that the Home Secretary wants to reply to the appellant's submissions too - the papers will go to the Justices, for their decision.

It does appear to be a long drawn out process, but I'm told this kind of back and forth is the norm in post-judgment submissions.
There  is also the possibility of a further hearing on the issue, as Lady Hale also indicated in her judgment - making comprehensive and considered submissions even more important.

So there we have it - and lest you think we can have a newsletter without mention of our favourite politician, see this piece highlighting the legacy left by our current PM in her previous role.  I do have a lot to say on TM's deluded view of how the EU and Brexit, but will leave that for another time, along with the updated guidance I had mentioned in the previous communication.

Until then folks, I wish you a pleasant week, with lots of fingers and toes crossed for families playing the David to Home Office's Goliath at the Court of Appeal.

---

More FOI: Serendipity

Author : Steve

Further to the post below, the Home Office response to the FOI contains a very useful link to tables containing a lot of data on numbers of visas processed/refused over a number of years. Now, while I don't think you can extrapolate data specifically for family partner visas on individual countries from those links, you can use them to identify a general trend over time. (The tables contain general data for countries, and for partner visas, but not both together, which is the area of my interest; hence an FOI request is required for this).

In particular, Table vi_01_q allows you to pull off data by category, for example family partner, per quarter. The data for recent years is tabulated below.

The total numbers (all nationalities) for 2016 are : 10958 family partner refusals / 37569 total = 29.2% overall. This gives us a baseline to compare with the percentages of visas refused by country in this post.

These are the total numbers of applications for partner visas since 2011, per quarter:

2011q1 7,110
2011q2 10,067
2011q3 9,676
2011q4 9,340
2012q1 11,409
2012q2 11,797
2012q3 10,639 (new rules are introduced about now)
2012q4 5,885 (big drop - the impact of the new rules is felt!)
2013q1 7,025
2013q2 8,289
2013q3 9,002 (but we start to see the number of applications recovering here)
2013q4 8,066
2014q1 7,354
2014q2 7,909
2014q3 8,378
2014q4 8,287
2015q1 9,162
2015q2 10,270
2015q3 9,643
2015q4 9,649
2016q1 8,776
2016q2 9,574
2016q3 9,366
2016q4 9,853

... while the numbers of applications never quite reach pre-2012 levels, they get close.

Also - from the same set of tables - consider the percentage of visas refused over the same time period :

2011q1 18%
2011q2 13%
2011q3 16%
2011q4 15%
2012q1 15%
2012q2 15%
2012q3 22%
2012q4 42% (big jump in refusals after the 2012 rules come in!)
2013q1 33% (but then the % of refusals starts to drop...)
2013q2 30%
2013q3 18% (... back to pre-2012 levels!)
2013q4 20%
2014q1 15%
2014q2 15%
2014q3 40% (why so many refusals here - maybe the impact of the Immigration Act 2014?)
2014q4 32%
2015q1 27%
2015q2 24%
2015q3 29%
2015q4 27%
2016q1 31% (this looks like a bad quarter as well)
2016q2 28%
2016q3 26%
2016q4 26%

So - to draw a tentative conclusion - the 2012 rule change had a big short term impact on family visas, but after several quarters people adjusted and the numbers of visas granted are (almost) back to the same levels.

Which was sort of predicted at the time the rules came in... people adjust, as they have to, because after food and shelter, family is the most important think in most people's lives, regardless of what the government says. People adapt.

Maybe you can also see the impact of groups and campaigns like BritCits, Family Immigration Alliance, Love Letters to the Home Office, and I Love My Foreign Spouse here as people self-organise, share information about news and tactics, and build each other and the sum of knowledge up - over time; even if, like bodhisattvas, they continue to share their experience for the good of others after succeeding in their own fight.

And of course, it is a fact that as the world continues to globalise, historic forces continue to interconnect the world politically, economically, and inter-personally. As I've said before on this blog, practically since its inception, the rules were always doomed to fail in their intention because love finds a way. Even after the first refusal. One way or the other.

Juggling on the Berlin Wall

Total number of spouse visas processed and refused by selected nationalities, 2016

Author : Steve

A while back I made this Freedom of Information request in response to an online discussion, as I was curious about numbers of rates of refusals for a balanced selection of different nationalities, including some of the most common countries for foreign spouses. The text of the request is here :

I would like to request the following information under the Freedom of Information Act.

1. Total number of spouse visa applications processed for the following nationalities from January 1 2016 to 31 December 2016 : 
Argentina, Australia, Brazil, Canada, China, Egypt, India, Israel, Japan, Mexico, Nigeria, Pakistan, Russia, South Africa, Thailand, Turkey, United States

2. Total number of refusals for spouse visa applications processed for the following nationalities from January 1 2016 to 31 December 2016 : 
Argentina, Australia, Brazil, Canada, China, Egypt, India, Israel, Japan, Mexico, Nigeria, Pakistan, Russia, South Africa, Thailand, Turkey, United States

This was for a whole year, to even out anomalies such as local holidays. The response is in (see link above) and includes data per quarter, with information about applications made, processed, refused, withdrawn, and lapsed.

The table below shows the numbers of refusals divided by the number of applications over the whole year, followed by a percentage of refusals/applications. Note this comes with a few caveats, e.g. withdrawals and lapses are included in the total so don't assume that every visa not refused was processed; however the numbers for withdrawals and lapses are very low and wouldn't make much difference to the overall figures even if excluded. Note also that an application made in 2015 or 2016 may not be processed until 2016 or 2017.

These are included without comment as there is likely more than one reason for the differences. However the results are enlightening and seem to match the lived experience of both BritCits members and members of other online support groups and forums.

Country Refused/Total = Percentage (2016)
Japan 17/272 = 6.3%
Argentina 4/42 = 9.6%
Australia 93/881 = 10.6%
SouthAfrica 99/834 = 11.9%
Russia 70/582 = 12.0%
Canada 73/517 = 14.1%
USA 371/2544 = 14.6%
Brazil 76/480 = 15.8%
Mexico 28/175 = 16.0%
China 222/1071 = 20.7%
Israel 19/87 = 21.8%
Thailand 242/1094 = 22.1%
Turkey 176/787 = 22.4%
Egypt 102/338 = 30.2%
India 1236/3888 = 31.8%
Pakistan 3032/7472 = 40.6%
Nigeria 555/1131 = 49.1%

Note to the reader : You can make your own FOI request at whatdotheyknow.com, and I think an FOI request is something everybody should do at least once in their lives.

BRITCITS OVERVIEW OF MMCASE SUPREME COURT JUDGMENT

BRITCITS OVERVIEW OF JUDGMENT – 22 FEBRUARY 2017

MM AND ORS vs SECRETARY OF STATE, SUPREME COURT

The Court of Appeal making families wait for four months felt tortuous.  It seemed like a gift though when the Supreme Court took a full year, handing down its judgment on the one year anniversary of the hearing.  There had been much hope pinned to this, that these judges would see what the ones in the preceding court hadn’t, and would undo the injustice done to families by our paid representatives. Perhaps because it is the last hope – unless this case goes to the ECHR, which given the case law references may be unlikely.

The CoA had shocked us (case overview here) and Supreme Court wasn’t to be left behind.  However, the judgment was also not as bad as the headlines suggested, nor as even I initially though.  It wasn’t as great as it should have been, but there are some positives.

In summary, the minimum income requirement, at £18,600 is retained.  But the Home Office has been told to amend the rules and guidance to ensure best interest of children is the primary consideration and to consider how alternative means of reliable funding can be taken into account.

The judgment

Looking through the judgment in some detail:

Introduction

In the same paragraph [2] the judges look at both, the median and mean earnings, which isn’t consistent. The judges acknowledge there is a disparity in earnings between men and women, and across the regions – yet seem to accept the inherent discrimination.  They also reflect that 301 out of 422 listed occupations – ‘many providing essential public services’ – have average annual earnings below £18,600, yet don’t take into account that these rules therefore do not serve public interest by effectively forcing those providing these essential public services out of the UK, or at least, out of their occupation.  There is no acknowledgement that there may not be enough jobs paying the elusive £18,600 outside London, and that being forced to move to a region where such salaries are the norm actually leaves the family in a worse financial position.

The MIR and the background to its introduction

We are reminded that even pre July 2012, sponsors would need to show they were able to maintain and accommodate themselves and any dependants ‘adequately in the UK without resource to public funds’ such as social housing and welfare.  NHS, education and social care are not classed as public funds for this purpose.  However, this was considered problematic because of inconsistencies in allowing for current and prospective income of sponsor and applicant, third party support and housing costs. Additionally it did not prevent a burden on the taxpayer once the applicant had indefinite leave to remain, when they’d be eligible for full access to welfare benefits.

The above are given as the reasons for the MIR.  I have so many issues with this. 

1.    The rules even now allow for current income of the sponsor; they also allow for prospective income of sponsors who earn over £18,600 overseas and have a confirmed job offer in the UK paying over that threshold. 

2.    The judgment deems HO does consider alternative means of funding – not clear what, but this may mean third party support. 

3.    Even now, spouses can claim full benefits once they get ILR.

So taking the combination of the July 2012 rules and the judgment, caseworkers should surely be faced with the same problems the HO claim they did pre July 2012.  What is the point then?

With regards to public funds – I cannot see in the judgment any mention of spouses paying an Immigration Health Surcharge, or the taxes and National Insurance they pay from their earnings which finds its way to the NHS.

There is much in the judgment about the Migration Advisory Report that came up with the £18,600, including that this was the total household income that disqualified even the sponsor from becoming ‘a burden on the state’. 

The aims of the MIR it is claimed by the HO are to

-       Ensure “those who choose to establish their family life in the UK….should have the financial wherewithal to be able to support themselves and their partner without being a burden on the taxpayer.  Moreover the sponsor should bear the financial responsibility of ensuring the migrant is well enough supported to be able to integrate and play a full part in British society”. 

-       Reduce net migration

-       Restore public confidence in the immigration system

The first point above makes it clear that the HO intends for British citizen to pay a penalty for falling in love with a foreigner, whereby they must give up their own right to claim benefits, to have their partner with them.  The second point unfortunately works in the HO’s favour, as part of their strategy.  The third point – well, how can public confidence in the immigration system be restored when since 2010 the Home Office spend on immigration fees has seen a steep rise, coupled with a staggering percentage of refusals being overturned on review or appeal.

HO anticipated these rules would reduce family visas by about 16,100 per year, and net migration by 9,000.  This much havoc wreaked on families for this you ask.  Indeed.

The new Rules and Guidance

It seems part of what has fed into the judgment is that the new rules were unanimously approved by a positive resolution of the House of Commons, and the motion of regret in the House of Lords was withdrawn.

Deep breath.  First of all, when the new rules were approved, it had not been made clear what the rules were – they had they had not been run through in detail in parliament, and they were rushed in, with less than one month’s notice.  The Joint Committee of Human Rights also said that the rules had not been through the required level of parliamentary scrutiny.  Once there was more clarity on what the rules actually meant, both Houses of Parliament voiced dismay at what the rules were doing to families.  Evidence was submitted by the MM lawyers on these points.  Additionally, withdrawal of the motion of regret by peers is convention and very standard behaviour in the HoL. It is not a condoning of the rules.  Although I didn’t know this, I found out by speaking to the wonderful Lord Avebury and Baroness Hamwee.  I cannot imagine the judges are not however aware of this convention.

The judgment then goes into the background of the actual cases brought before them. I am seriously peeved by the repeated mention of the heritage of the British citizens who are looking to sponsor a foreign partner.  Why is it relevant when the judgment gives no weight to the disparity of average earnings amongst different ethnic groups?  It just serves to insinuate there is a two-tier nationality.  I also wish the cases had been of a sponsor who was a British citizen by birth, even going back several generations and unable to sponsor their partner from America or Australia.  It shouldn’t make a difference, but I can’t help but wonder if it would have.

The case law

There is case law indicating that there is ‘no general obligation to respect a married couple’s choice of country to live in…’ and this is used by the judges to go further and say ‘no general obligation…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 ties in the host country; whether there are “insurmountable obstacles”’….and whether when family life was created it was known the immigration status of the foreign partner would be precarious. 

There are references to case law where the foreign spouse had committed an offence in the UK – not relevant for the most part.  Importantly though the judges reference case law that says best interest of children must be taken into account (s55), even more so in the UK because we are a party to the UN Convention on the Rights of the Child.

It seems the judges may have been placated by

-       HO saying s55 would be adhered to not just for kids in the UK, but even for those outside the UK.

-       Appendix FM purporting to reflect article 8 and s55

-       Explanatory Memorandum stating the purpose of the new rules is to set requirements which correctly balance right to private and family life with public interest in safeguarding the economic well-being of the UK by controlling immigration, and that best interest of kids has been incorporated into the rules. 

But just because the label says something, it doesn’t mean that is what is in the tin…and to some extent the judges do see that.

Challenging the rules under article 8

The Quila case is interesting – it restricted the admission of foreign spouses only where both parties were over 21, in an attempt the HO said to deter forced marriages.  Supreme Court in this case said the number of unforced marries which such an age restriction obstructed vastly exceeds the number of forced marriages it deters….a sledgehammer to crack a nut approach when the HO didn’t identify the size of the nut i.e. the problem.  And this case thus went against the government.

I cannot therefore understand why the same reasoning is not applied to this case – the rules cause more damage to law-abiding families who are not a burden on the taxpayer than deter those who potentially would be.  Well, the HO certainly didn’t prove these rules help more than they hinder.

However, the court was not convinced that these rules are inherently unjustified in all or nearly all cases and hence the MIR was not ruled unlawful on article 8 grounds.  Furthermore, case law indicates that the rules themselves do not have to be article 8 compliant –the refusal of a visa may however breach article 8 in individual cases.  Confused? Let me try and explain.  The rules do not have to allow for article 8 rights, but the decision to grant or refuse a visa in an individual case must take into account article 8– which can be done through the combination of the rules, guidance, and tribunals.  Additionally, the Home Secretary / Minister for Immigration has discretion in granting entry clearance outside of the rules (although there is no evidence to indicate this power is used).

So, it’s okay for the HO to refuse a visa on the basis of rules which do not take into account article 8 rights, because families will be able to go to tribunal to invoke article 8 rights. 

“Thus whatever the defects there may be in the initial decision, it is the duty of the tribunal to ensure that the ultimate disposal of the application is consistent with the Convention.” [59]

That going to tribunal is not an option for all, because it costs a lot of money and means article 8 rights are not respected for even those who do go to tribunal for the years any legal proceedings take, is not addressed.

Had the Home Office not changed their stance to accept that the rules are not all-encompassing when it comes to article 8 rights, the judgment may have gone against them.  Interestingly, the HO still aims for the rules alone to lead to decisions which are compliant with article 8.  The judges suggest this may not be acceptable, but that is to do with the legality of the instructions, not the rules – and it is the latter which they are being asked to make a judgment on, I guess they are implying.

Acceptability of the MIR

“MIR has caused, and will continue to cause, significant hardship to many thousands of couples, who have good reasons for wanting to make their lives together in this country, and to their children.” [80]

Here the judges acknowledge that the type of families who the MIR will have a harsh effect on also includes Brits who formed relationships before the MIR was introduced, and now find themselves unable to return home.  However, they go on to say that just because a rule causes hardship to so many [suggesting to me they are aware of the anguish caused by these rules], including those who are in no way to blame for the situation which they now find themselves in, does not mean that it is unlawful – despite also saying that while the MIR doesn’t prevent a couple marrying it does prevent them from enjoying family life together. 

Despite that ‘MIR may constitute a permanent impediment to many couples’, it is part of a strategy to reduce net migration and ensure the couple do not have recourse to welfare benefits and can integrate.  And these aims are sufficient to justify the interference with, and the lack of respect for, the right to a family life.  Joy.

Worse, the MAC report is practically praised.  And I don’t know if I am being dim here, but the MAC report recommended an income threshold of £18,600 as the household income…a two person income. Why then impose this requirement on one person alone?!

So the judges rule that the principle of the MIR is lawful.  Which is fine - it’s the level which has been an issue, so much higher than minimum wage. But I’m not sure that is covered by this judgment.  Is there anything to stop the HO from increasing the MIR?

Treatment of children

The judges find that best interest of children is not treated as a primary consideration.  Instead, current practice is that the foreign parent is only where there presence is the only means of alleviating the hardship caused to the child e.g. for a major medical procedure or prevention of abandonment.  The judges state that they have no doubt this approach is defective, deeming both the rules and the guidance as unlawful.

Treatment of alternative sources of funding

MAC report is once again cited, as it mentioned including third party support and the future income of the spouse, given it is total household income which determines eligibility of even the British citizen to welfare.  That the Home Office did not take up MAC’s offer to consider how the £18,600 could be adjusted is a huge boon for families, as there may be pressure on the government to now do so.  I am however bemused at the reference to third party support in the form of accommodation being taken into account though, as the MIR is not reduced to reflect 'free' accommodation. 

The court re-iterates what has been said in the House of Lords – that third party support may be more dependable than employment. 

However, not allowing for alternative means of funding like third party support in the rules is acceptable, as this makes for rules which are simpler and easier to apply.  Outside of the rules though is another matter as the Human Rights Act requires looking at the circumstances underlying each application.  But the Supreme Court deems that judges at tribunals can assess the reliability of alternative sources of funding, even where caseworkers do not. 

Supreme Court says the guidance should make clear that a broader approach may be required to assess whether the government’s objectives of ensuring no burden on taxpayer and integration can be met by other reliable sources of funds.  Although, whatever the rules and guidance say on this, nothing precludes the tribunal from allowing for them. 

What constitutes reliable is a matter for the government to decide, and whether they do this through the rules or guidance is up to the government.

What now?

The Home Office will make written submissions to the Supreme Court for the changes being proposed as a result of this judgment, and the Court will then consider whether a further hearing is necessary.  I’m told by a member of the legal team that the Home Office has 56 days to action this.

We know the rules and guidance must be amended to take into account the best interest of children. 

Amendments will need to be made to ensure alternative means of funding where the source is reliable as deemed by the Home Office are taken into account, though how this is done, and what constitutes reliable, is up to the government. 

The MIR remains, and remains at £18,600+.  Bummer.  Can the government even increase this? If they do so, I suspect it will not be part of their submissions!  However, it may be tough for the to increase the requirement to a threshold which is higher than that which would disqualify a British citizen from claiming income-related benefits, given their rationale for the threshold.

I am concerned that whatever positive changes the Home Office make on the back of this judgment, caseworkers will continue to apply them unlawfully. I have serious reservations about so many families still being forced to rely on tribunals to right wrongs, when the tribunal path is neither quick nor cheap.  I am worried about the families who will still not be able to be together because of the rules, couples who are prevented from having children because they are living in different countries, and indeed, some who accelerate having kids just to be together in the same country. 

It may be that significant change will now only come from parliament rather than courts, and thus I urge all of you to make the most of media opportunities to voice how damaging these rules are, write to your local newspapers, lobby your MP, name and shame them if they do not represent you.  With each day, the number of British citizens caught up in these rules will only increase as more and more fall in love with someone without factoring in the colour of their passports.