"I have never welcomed the weakening of family ties by politics or pressure" - Nelson Mandela.
"He who travels for love finds a thousand miles no longer than one" - Japanese proverb.
"Everyone has the right to respect for his private and family life, his home and his correspondence." - Article 8 of the European Convention on Human Rights.
"When people's love is divided by law, it is the law that needs to change". -
David Cameron.

Wednesday, 6 May 2015

Recent cases on family immigration

Two recent cases on sponsoring spouses/partners, which I dicsuss briefly below, with [X] denoting the relevant paragraph from the judgment.  I urge those interested enough to read the full judgment for a more complete understanding and forming your own views.

SS & Ors vs SSHD from Court of Appeal last week, on the relationship between immigration rules and Article 8 (right to family life) was disappointing. Judges [13] suggest although rules may not fulfil requirements of European Convention on Human Rights, as Theresa May can exercise her discretion outside the rules they are not unlawful (!).  The fact that she doesn't seems to hold apparently has no bearing.

Judges overturned the appeals in front of them where they had succeeded at tribunal solely on the basis of the MM case at High Court case in which Justice Blake determined the rules overall were disproportionate and unlawful, by referring to the more recent CoA judgment in the same case.[27].

I find myself increasingly frustrated that judges just don't get it, coming out with same old trite statements that State has right to interfere where 'fair balance has to be struck between competing interests of the individual and community as a whole'. (105)  How they can't see that these rules damage the community as a whole is beyond me.  Our family would have no recourse to public funds; research shows they are net contributors; experience and common sense suggest breaking up families causes irreversible harm with strain on NHS, welfare groups and benefits system.

The court agreed State is obliged to respect family life and act in a manner to allow ties between close relatives to develop normally, however as the principle of respect is not defined, the State has a wide margin to work within. [106-7]. Desk-head-bang moment.

There was some weight on precariousness of the immigration status at the time family life was established, finding the situation more favourable where a British citizen had lived abroad with their spouse for years but with a change in circumstances, now wished to return home, than where someone got married knowing they would need to meet the immigration rules.  However from what I understand of the judgment, even the prior case isn't that strong because the fall-back option for the State is always that the family can live together outside the UK.

Frankly, I think it's quite cheeky for the Queen on our British passports to ask other countries to "allow the bearer to pass freely without let or hindrance, and to afford the bearer such assistance and protection as may be necessary" when they don't do so for their own citizens!

However, tis not all doom and gloom. I extend my thanks to the barristers at 1 Crown Office Row for sharing details of the Mirza case at Inner House (Scottish equivalent of CoA) adopting a respectful attitude towards families and Brits, in ruling at [18]:
"...as a British citizen, the petitioner’s wife cannot be required to leave the United Kingdom.  Both under ordinary principles of common law and international law she has the right to live within the United Kingdom.  That right is reflected in the terms of section 1(1) of the Immigration Act 1971 which provides that a British citizen, such as the petitioner’s wife, is “free to live in the United Kingdom without let or hindrance”. 
The judges go on at [20] to criticise the HO suggestion many readers will be familiar with, that the couple live in applicant's home country if they wanted to be together, by pointing out the hypocrisy underlying wanting Pakistan to accord Pakistani citizens the right to live with a non-national spouse, when UK was not willing to do the same for British citizens.  If only we were all Scottish did you say?

Read more on this at the UK Human Rights blog.

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