BritCits

Week's roundup and update on MM

Update 16th June 2014 : This summary is now available here :
http://www.scribd.com/doc/231039718/MM-and-Ors-Case-Overview

by Sonel

Allo eager beavers and grab a cuppa - its a bloody long one.

Thank you to all those patiently waiting to hear about the MM case - I haven't responded to individual requests given below is a more efficient way to provide an update. 

The two days in court were very interesting and lots of fun, despite the oh-so-many references to case law which meant not very much to those of us who dont have the legal background to understand their relevance.  Able to follow a lot though and it was certainly evident from the very beginning the difficulties faced by the Home Office side in trying to defend rules which are clearly wrong.

RCJ is a beautiful building - do visit if you're in London.  I was expecting a massive room given we were in courtroom 76 - apparently the largest one - with an atmosphere more akin to those seen in US courtroom dramas.  However as is the British way, things were much more "civilised"

I write below with my views of the 2 days - read with care as it's based only on my hastily scrawled notes and at times rusty memory; for something more definitive, I've been told court transcripts are available for £25 a page :)

Attendance

The first day was fantastically attended with close to 40 ppl despite the last minute change in date: demo outside was peaceful, and individuals were interviewed by a Filipino journo and a reporter from Al Jazeera on how the rules impacted them. The courtroom was packed - only a couple of spare seats indicative of a great turnout (lawyers said makes a huge difference for judges to see ppl affected by the rules as indicates level of public interest as well) and it was clear to the judges which side all of us were on.  Second day saw the hardcorers (I wont name as will end up leaving someone out) return, along with representatives of ppl who couldn't be there...around 10 of us there in total which is very good.  Many many thanks to those who attended the demo and/or hearing. Every single person made a difference.

Thank you

The last month has been pretty intense but BritCits is and always has been about the collective effort of all members.  I got a lot of thank-yous from the barristers which I credit to you as BC has seen an insane amount of work put in over the last 1.5 years from Steven too, but we'd not have had much material to work on without your sharing what often is personal and painful info which is the only thing that led to my being able to make a witness statement in the first place  - cited by the lawyers as the single most important piece of evidence in their demonstrating the real-life impact on actual families.  This statement would NOT have been possible without you - so my sincere and heartfelt thanks.

Some of you are aware that the HO side objected to the statement being allowed as evidence, but whether formally admitted or not, judges will read through it and they did listen to evidence from all the barristers on it, so I don't imagine they can not be influenced by it. Individual cases from the BC portfolio were referred to and the entire doc containing case studies of all those impacted by the financial requirement submitted as evidence as well.

I have tweeted from my notes specifics of the hearing so pls go to twitter @BritCits (which also mentions names of many of the cases cited) or my BC FB page (www.facebook.com/britcits) to see these; I missed part of the afternoon session on the second day as had a meeting with David Hanson (shadow immigration minister - also quite interesting - whether fruitful or not time will tell) and work commitments called.  At some point I will work through Mark's detailed notes from the part of the hearing I was forced to miss which he very kindly agreed to take and share with me (ta again).

Overall All (both sides and the judges) agreed rules are NOT compliant with Article 8. This is a big thing, as Article 8 is the law as the judge stated very clearly during the proceedings. 

I felt both days were very positive, and all indications seem to suggest the panel of three judges could see the rules failing on several fronts - especially as they impact British citizens and refugees; former who have the right to live here 'without let or hinderance' and the second group as not really having the option of going home or even exercising free movement rights.

No guarantees however, so whilst be hopeful and positive, hold off on the celebrations just yet.

What happens now?

Manjit Gill, the lead barrister pointed out to the judge the hold put on cases since 5 July 2013; the judge 'promised' they would take less time than Justice Blake did.  For info, J.Blake took about 5 months, but a member of the legal team indicated we can realisitically expect something within 4-8 weeks.  Not in any of our hands though, so only thing we know for certain is less than 5 months. [I think judges have already made up their mind, but they need time to read through the voluminous amounts of paperwork].  Other barristers on the 'good' side who submitted evidence were Richard Drabble, Ramby de Mello, Tony Muman, Navtej Singh Ahluwalia, Ineza Hussain and Aftab Rashid.

Indications are that HO will appeal any decision that goes against them, with a view to going to Supreme Court. In my view, this would purely be an attempt to delay any negative press till after the 2015 election.  So strategy BC will adopt is to try and raise the profile of how much the Home Office has spent on legal fees, with our trying to dissuade May from taking this any further.  Theresa May is power hungry and this may well be a matter of pride now so it's likely she will charge ahead irrespective of the cost to the taxpayer....but we will try.

What can you do?

Keep raising the impact of the rules with your MP whether still affected or not; share your story with BC if you haven't already, respond to questions on the various FB groups to help others.  Also any examples you can find showing Theresa May having engaged in litigation (Abu Qatada, the recent Botswana example, the 'cat' one, deportation cases etc) - anything to demonstrate that she is litigious to the point of being irrational - please send across to me.

Home Office

I think HO's main arguments fell within the following points:

1) 'Scheme as a whole' is Article 8 compliant, defining scheme as the combination of the rules + guidance + obtaining ministerial authority + tribunals. 

Rules: This is despite the fact that the original Statement of Intent suggested Theresa May wanted the rules to encompass all article 8 features as a standalone document.

Guidance: It was made clear during hearing that guidance issued in October 2013 (1+ year after the rules were in place).

Ministerial authority: Evidence provided showing Mark Harper referred only to ONE case of exercising his ministerial authority to grant leave outside of the rules under exceptional circumstances (judge commented that this was evidence of just one exception in over a year of the rules being in place).  ==> Column 278WH http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm130619/halltext/130619h0002.htm

Tribunals: Judge said tribunals would apply Article 8 as Human Rights Act is the law. 

The message I got is that the judges don't think its right that several layers skip Article 8 with ppl being forced to rely only on the judicial system to apply the law. 

2) That policy making falls within the remit of the government and therefore the court should not interfere; that Justice Blake went too far. 

This is true to an extent in that judges can't tell the govt what the rules should be. However they do and must, get involved if the rules are not lawful.

3) Judges to accept that rules had had 'more' than the normal level of parliamentary scrutiny.

MM side

Three clients involved, so three barristers spoke addressing many very relevant things including but not limited to:

1)  Irrelevance of the cases referred to by the HO side to this situation (often declared by HO itself as not being 'material'!)

2) Citing cases justifying the courts getting involved, and that Justice Blake did not in fact go far enough.

3) That not one refusal letter showing exercising of article 8 by ECOs had been seen.

4) ECOs spending 6-12 mins making a decision, questioning why therefore were application fees so high and only increasing; and how could a situation really be assessed in such little time if clearly a tick-box exercise was used.

5) Citing cases that showed the rigidity of the rules as well as their incorrect application e.g. someone below the threshold by £0.69 per week was refused a visa; £15,999 cash savings ignored, overtime disallowed even though rules allow for it, lowest payslip annualised using statutory sick pay received for 1 week out of the 6 months even where the total annual salary was over £18,600. The government's response on cases such as the £0.69 shortfall in income being refused a visa is that there is no near-miss principle in the rules [translation:common sense not allowed].

6) Section 55 i.e. best interest of child clearly not being considered

7) That Brits were being forced into exile; families were breaking up; irrational that so many felt only route open to family reunification was going down Surinder Singh route to achieve same aim of settling in the UK

8) 30 month probationary period too long and intrusive

9) Reminder to court that while minimum income threshold was one for the govt to set, court retains obligation to rigorously test measures adopted are proportionate.

10) Non-EEA spouses have no recourse to public funds and Secretary of State has been taking undertakings from sponsors that should there come a time when migrant spouse has recourse to public funds, sponsor would reimburse ==> clearly therefore not a drain on the public purse.

11) These weren't sham or forced marriages affected; the right to marry, co-habit and raise a family were a fundamental and constitutional right, therefore any interference must be justified.

12) Integration as a reason for the rules not right, as rather than help people fit into society, they were keeping couples apart, with 50% of workforce unable to meet income level and 122/401 occupations earning on average less than £18,600.  Huge issue as in Quila at least it was clear that an 18 year old would reach age 21; here some may never be able to meet £18,600. This level of interference 'disproportionate' and not the least intrusive one which could have been adopted to achieve stated aims, given 3rd party support also excluded.

13) That the rules were not subject to sufficient parliamentary scrutiny, referring to the evidence for this as Hansard records and letter from the Chair of the Joint Committee of Human Rights to Theresa May: http://www.parliament.uk/documents/joint-committees/human-rights/Letter_to_Theresa_May_immigration_rules_110711%29.pdf

14) Mismatch between the assumptions forming part of the £18,600 recommendation put forward by MAC - which included £6k for accommodation yet the income requirement was not lowered where it was demonstrated that applicant had mortgage-free/rent-free accommodation available to them.

15) Further barriers for those overseas, even where they may have been earning over £18,600, who wished to return home, given guidance required them too to have a job ready in the UK paying >= £18,600

Judges

Asked several questions / made comments to confirm the arguments being made. Memorable ones:

1) In response to HO saying that there was guidance on leave to be granted outside of rules on Article 8 grounds, judge pointed out that the rules clearly said that if the application failed to meet the financial requirements, it must be refused.

2) Said that there must be a balance of interest towards community in terms of the cost and benefit to public purse, and the interest of a smaller and specific group.  HO response was that the courts should take a less intrusive approach, citing the example of cigarette vending machines where commercial considerations were balanced with those of the individuals (or something like that!).

3) Thought the only thing being discussed is whether Article 8(2) applied, but HO side contested saying they did not recognise the right of citizens under Article 8 to live in the UK with their spouse.  HO suggested citizens could go live with their spouse elsewhere.  Later HO suggested a couple (one British partner) having spent several years living in Australia who then 'choose' to move to the UK be considered less favourably as it was a choice to relocate. i.e. HO said there is "no general right to live in country of choice".

4) Confirmed HO was not distinguishing between the rules and their impact between citizens, refugees and others settled in the UK.

5) In response to the HO side saying reach of article 8 is primarily for the Strasbourg court to develop, said "...but this is fundamental Article 8 stuff.  There can't be anything more fundamental than living with your wife and children."  [sexist, but you get the gist!]

6) In response to HO citing cases where restriction applied to applicant being allowed to live in the country of their partner, judge pointed out that the cases being cited were from the point of view of the applicant, but sponsor's immigration status not contentious. Govt agreed and said they were looking at the immigration status of the applicant.  Judge's response "but the income requirement applies to the sponsor not applicant" could elicit no real response from the HO side other than that Theresa May intended the rules to take into account article 8, but thats not a guarantee (!), citing the case of Huang.

7) In response to the HO side explaining why a job offer made to the non-EEA spouse was not accepted, they said 'a guaranteed job offer is not binding', leading the judge to say if it's a guarantee it's guaranteed, so which is it!  Govt ummed and ahhed, essentially suggesting that such a job offer couldnt really be verified, but that even if was verified as genuine and reliable, one would expect job could be lost (well, duh - this applies to any one of us!) and said that's why even UK national sponsors were required to evidence employment over a period to demonstrate stability.  HO suggested that spouses could instead come in under the Tier 2 route if they had jobs.

Govt went back to this point immediately questioning why the assessment of genuine jobs as done under Tier 2 could not be extended to spouses under the family route, saying they were raising this point in response to the HO trying to justify why job offers to foreign spouses was not acceptable as evidence of income. HO's only response to this was "I'm not explaining why it's not but explaining why the Secretary of State is allowed to exclude this, as there are substantial risks and uncertainties".

This was essentially the HO's response to most things - i.e. we're allowed to do this.

8) Judge to HO side: "So you're saying it's easier to integrate if you're more affluent than if you're poor."  HO side: "Yes." 

Clearly not true and it didn't seem like the judges will blindly accept integration being a valid reason justifying the rules being what they are.

9) Judges were keen to find out whether there were any circumstances where a person on benefits would receive less than £18,600.  HO didnt have info handy but did provide it during the course of the hearing.

Let you know when there are any further developments.

Regards

Sonel Mehta