Below is some background on our legal challenge of the ADR rules - this page will be updated with any developments.
Last update: 4th March 2016
UPDATE: Upon review of our papers in December 2015, a judge decided that our application for pemission should be allowed on all grounds, and that despite the HO assertion, BritCits does in fact have sufficient standing to make the claim. The hearing will be at the High Court over two days, 19th and 20th April. More info here.
What is this legal challenge about?
On 9th July 2012, UK brought in rules for sponsoring adult dependant relatives (parents, grandparents) which have been deemed a ban masquerading as a rule. The earlier rules already required evidence to show the sponsor had the means to look after their parents without recourse to public funds. The earlier rules also had scope for well-off parents to move to the UK as retired people of independent means, though this is no longer allowed either.
Last update: 4th March 2016
UPDATE: Upon review of our papers in December 2015, a judge decided that our application for pemission should be allowed on all grounds, and that despite the HO assertion, BritCits does in fact have sufficient standing to make the claim. The hearing will be at the High Court over two days, 19th and 20th April. More info here.
What is this legal challenge about?
On 9th July 2012, UK brought in rules for sponsoring adult dependant relatives (parents, grandparents) which have been deemed a ban masquerading as a rule. The earlier rules already required evidence to show the sponsor had the means to look after their parents without recourse to public funds. The earlier rules also had scope for well-off parents to move to the UK as retired people of independent means, though this is no longer allowed either.
The rules are found to be so harsh because they now only allow for sponsoring an ADR where they physically are unable to dress, bathe or cook for themselves, and even then, there is other criteria to meet. You as the sponsor would ALSO need to show:
1) there are no family or close friends in your parent's home country who can look after them
2) there
is no one you can employ in your parent's home country who can look after them,
or,
that
you and your parents cannot afford to pay someone to help with their care
because it is so expensive, even with the help of social care, but
3) that
you do have the money to look after them in the UK without recourse to
public funds.
It's a very rare situation where someone has money to look after a bed-ridden parent in the UK, but not enough to say pay someone to look after them. Monaco is the only example we can think of! Furthermore, when your parents are in that vulnerable situation, is that really when you want to be battling the Home Office, spending years in court? There is absolutely no scope to sponsor reasonably healthy or parents with mild problems.
I have been speaking out against these rules online since June 2012, and more vocally since 9th July 2012. It's taken a couple of years to get the issue out there enough and I was very pleased when with all my pushing and prodding, including as part of the Divided Families campaign, convinced JCWI to take a serious look at these rules, and thus we worked with them to put out this report. Our understanding is that after some consideration, JCWI chose not to pursue a legal challenge of the ADR rules, however this report does form useful evidence.
As the
rules are not going to magically change, especially now with a Tory government,
BritCits decided to attempt to get the rules overturned ourselves. However we
need your support. Please don’t wait for something to happen to your
parents before you start taking an interest in getting these rules changed as
time and energy will be scarce then, and know that we will be stronger if we
all fight this together.
What is
the process?
Set out
below is our understanding of how things are likely to unfold.
First, we
must persuade a judge that material and arguments we set out on paper point to
an arguable case, hence a full hearing in the High Court is justified.
We send the Government Legal Department (formerly Treasury Solicitors), as legal representatives of the Home Office, a copy of our 'bundle' of papers setting out our case, after which they will have 21 days (or longer if they request and are granted an extension) to file an Acknowledgment of Service and Summary Grounds of Defence, setting out why the Home Office believes our case is not arguable and thus shouldn't proceed.
Home Office finally responded to our claim and as expected, they refused us on all grounds, even questioning our standing to be the Claimant. In October 2015, we filed a counter-response for a judge to consider the issues deserve a full hearing.
Our lawyers have done a stellar job in countering all of the HO claims and pointing out that even the HO has not been able to provide any reliable statistics.
The next stage was for a judge to consider our bundle as well as the response from the Home Office. Two options: judge could have considered our case was arguable, or not.
1) If the judge considers our papers do not disclose an arguable case, permission to proceed is refused. The good side then reviews the reasons for refusal, with a view to applying for an oral hearing to put forward our case (this will cost more money). Worst case scenario - permission is refused and we're ordered to pay Home Office's costs.
2) If the judge decides our case is arguable, permission to proceed with a judicial review is granted and the PCO application considered.
Home Office then has a further 35 days to file and send a Detailed Grounds of Defence, and any evidence on which it intends to rely in court. We also get time to file and send our evidence in reply to the Home Office's evidence.
The actual hearing date depends on the availability of the barristers, judges and courtroom.
We send the Government Legal Department (formerly Treasury Solicitors), as legal representatives of the Home Office, a copy of our 'bundle' of papers setting out our case, after which they will have 21 days (or longer if they request and are granted an extension) to file an Acknowledgment of Service and Summary Grounds of Defence, setting out why the Home Office believes our case is not arguable and thus shouldn't proceed.
Home Office finally responded to our claim and as expected, they refused us on all grounds, even questioning our standing to be the Claimant. In October 2015, we filed a counter-response for a judge to consider the issues deserve a full hearing.
Our lawyers have done a stellar job in countering all of the HO claims and pointing out that even the HO has not been able to provide any reliable statistics.
The next stage was for a judge to consider our bundle as well as the response from the Home Office. Two options: judge could have considered our case was arguable, or not.
1) If the judge considers our papers do not disclose an arguable case, permission to proceed is refused. The good side then reviews the reasons for refusal, with a view to applying for an oral hearing to put forward our case (this will cost more money). Worst case scenario - permission is refused and we're ordered to pay Home Office's costs.
2) If the judge decides our case is arguable, permission to proceed with a judicial review is granted and the PCO application considered.
Home Office then has a further 35 days to file and send a Detailed Grounds of Defence, and any evidence on which it intends to rely in court. We also get time to file and send our evidence in reply to the Home Office's evidence.
The actual hearing date depends on the availability of the barristers, judges and courtroom.
Who are
our lawyers?
We have
instructed lawyers at Migrant's Law Project (Islington Law Centre) who have
also been involved in the recent Detention Action defeat of the Home Office's
Detained Fast Track appeals. We have two barristers including a
QC also on the team.
Our legal
team is VERY good.
How much
will this cost?
Our
lawyers have agreed to work on a conditional fee arrangement - i.e.
no-win-no-fee basis. We need to raise funds to ensure we can pay:
- costs incurred whether we win or lose; whether we get permission to have a hearing or not. This includes filing fees, disbursements such as travel costs, translation fees etc.
- our lawyers fees if we win (capped at the PCO)
- the Home Office costs if we lose and judge orders that we pay the Home Office (capped at the PCO)
We have reached our fundraising target at JustGivinghowever donations are welcome to assist with the running of the charity. UK taxpayers should also contact HMRC to avail
of tax benefits.
What's a
PCO?
PCO stands
for Protection Costs Order, whereby we are effectively asking the judge to set
a maximum amount we would be liable to pay in order to pursue this judicial
review (JR).
The judge
will look at several things:
- level of public interest in this JR i.e. if BritCits does not proceed with the case then will the court instead be faced with multiple individual claimants, thereby actually costing the UK taxpayer more?
- likelihood of success
- size and resources of BritCits
- reasonable and genuine attempts we have made to raise the funds needed (in order to reduce reliance on other taxpayers)
As part
of our case is that the rules in practice disproportionately impact those who
are working professionals, on good salaries and thus have the means to look
after their parents in the UK without recourse to public funds, it is important
we show that this affected group is supporting this cause. If we don't
raise enough funds, the Home Office would understandably want that to be
evidence of insufficient public interest.
What has our evidence consisted of?
Several
bits, but very importantly, your witness statements as provided to the lawyers and case studies directly to BritCits written up in this portfolio (regularly updated). We were
particularly keen to look at families where:
- ADR is in a compelling situation
- minor children are missing relationship with grandparents
- UK sponsor working in health care, research, teaching etc.
- ADR been refused visitor or settlement visa - gives us insight into mind-set of Home Office & judges
- UK sponsor has relocated to another country where s/he can be with their parents.
Several law firms have also agreed to
provide statements on their experience of the rules and advice they are giving
their clients to effectively not apply, as the chances of success are slim to
none.
How can
you help?
Contact
us to let us know how you are impacted at britcits@gmail.com
Donate
and help us with the fundraising.
Tell your
friends, family, and colleagues about this challenge.
Write to your MP letting them know how you feel about these rules and what you'd like them to do by way of being your representative in Westminster.
Write to your MP letting them know how you feel about these rules and what you'd like them to do by way of being your representative in Westminster.
Quite frankly, why should the British taxpayers inherit elderly parents who will be a burden on the NHS in their older years? You should rather move back to where you come from if you are so worried about your parents.
ReplyDeletethe people work for the society or even look after your parents if they are doctor or nurse , why they cant look after their parents in uk as British Citizen. Do we cost your money when we say no cost public fund?
DeleteYou've obviously not read the rules - what BritCits are looking to bring back is the ability for parents who are NOT a burden on the state to come over an live as 'persons of independent means' - including independent health insurance and a certain level of pension income. At the moment, the only parents who can come over are ones who can prove they can't take care of themselves, and don't have anyone in their home country to take care of them. My mother retired at the same time I got UK citizenship (after I lived here and paid tax for 12 years), and I certainly don't want to wait until she's totally dependent on me before she's allowed to come and live nearby! Once I have kids, she wants to spend half her year here and half her year back where we're from. That seems like a totally reasonable thing to be able to do, especially since she'll be bringing her income and health insurance with her, not working, and also helping me get back into the workforce by helping look after her grandkids. It's absurd that such a thing is not allowed, just because of an arbitrary 'net migration target.'
DeleteActually that's not quite right. Our issue with the current rules is that EVEN where someone is dependent on their citizen child, be it financially or physically, the new rules don't allow for the family to be together. The family is told to get by, by admitting the parents in an old people's home or hiring a nurse/carer to be with them. Not quite the same as being able to look after them yourself...even a carer can get lax without supervision.
DeleteGiven that the govt closed off the retired people of independent means route as well, this lays false to claims by the govt that it wants to reduce burden on taxpayers, as even those who are well off are not allowed in.
Finally, by the government's own research not allowing ADR in does nothing to save the taxpayers money, because the potential cost in say NHS is offset by the loss in application fees. Add to this in my view the loss of skills as for exampe, doctors, teachers, engineers move to otehr countries where they can live with their parents, the loss to the UK is huge. Bear in mind, if the govt did just care about the NHS costs, it could have given applicants the option of showing private health insurance. But its not about money or whats actually good for the taxpayers. It's about numbers. Not letting one or two parents in means the entire family settled in the UK may well leave the UK. Good for the net migration target but not much else.
For those who are arguing against British taxpayers inheriting elderly parents you will like to know the reasons why it is the right of British citizens to support their parents.
ReplyDelete1. Instead of UK gov these parents paid for their British citizen children's education. Majority are all highly skilled migrants. e.g. Doctors who came qualified. U.K. Gov spends at least 32K in one doctotr's qualification. This investment was not needed.
2. British Gov never gave child benefit for these British citizen children.
3. These British citizens who came as highly skilled migrants to work in UK have been PAYING higher slab taxes from day 0 when they entered UK. Many of their spouses also do so.
4. UK Gov never invested in these British citizens' training and education. This was their parents' investment from their pocket not UK gov's treasury.
5. As per the rules all British citizens will have to pay inheritance tax on the assets of their parents wherever they are. This will go to British Gov.
6. Parents who are over 68 in previously British ruled countries like India were born in British Raj and were British citizens. Their parents already paid taxes to British Government.
7. EU citizen's parents come and get NHS treatment done without paying any taxes. Many times these EU citizens as UK residents themselves are on the benefits.
THEREFORE NO NEED TO FEEL GUILTY BY SUPPORTING TO CHANGE THE CURRENT LAW. Instead PLEASE FEEL AS DUTY TOWARDS THE ELDER PARENTS WHO NEED THEIR CHILDREN NEAR THE END OF THEIR LIVES AND CHILDREN NEED THEIR PARENTS. IT IS A HUMAN RIGHT.
Great writing
ReplyDelete