"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.

Saturday 27 June 2015


In part 1 we looked at Quila, the age-21 requirement on sponsoring foreign partners.

This part sees an analysis of the Chapti/Bibi hearing at Supreme Court, to do with the Home Office introducing a pre-entry language test.

Bibi – if it ain’t broke, why fix it?

25-26 February 2015 saw the case heard at the Supreme Court.  You can view the full webcast of the hearing online.

The case deals with the issue of the rights of British citizens, settled persons and refugees to make a reality of their married life with a person from abroad by living together in the UK.

Since 1 October 2010, the Home Office has required foreign spouses pass an English language test prior to coming to the UK.  Previously language tests needed passing for permanent residency and citizenship, which was only once the person was already in the UK.  Now the requirement is imposed on those who simply want to enter the UK in order to live with their partner.

For some time, there has been discussion around encouraging new arrivals to learn the local language across Europe.  The French and Danish systems encourage learning the language but do not imposing any prior conditions; entry is permitted so long as the foreign partner takes lessons once in the country.

However, the UK model resembles the Dutch and German ones, imposing a pre-entry condition, which for the latter two are now the subject of investigation by European Commission which considers such requirements to be contrary to the Family Reunification Directive (which UK has opted out of).  So why adopt Dutch and German models? Encouraging is fine. But condition = barrier, which EC said in its submission is unacceptable.  Vast majority of European countries have no such pre-entry condition – post-entry yes!

Only since 1905 has there been conditions on entry of foreigners and whilst the UK requirement is a basic one, at Level 1, there were several arguments put forward by the Bibi lawyers against such rules, main ones which I picked up as:

1)   If it ain’t broke why fix it?

Is interference justified?

Previously, people for the most part were passing the post-entry tests anyway – so is it reasonable to keep out vast majority because of a tiny number who didn’t pass post-entry tests?

Vast majority of consultation responses were against a pre-entry requirement.  The government ignored this, citing self-selection (!) which suggests to me that perhaps the SSHD had already decided to implement this policy, and hence the consultation was in itself a farcical process, merely serving as a tick-box exercise, rather than having any actual influence on the chosen policy. 

The post-entry test was found to be working, with Home Office's own Equality Impact Assessment of October 2010 showing that in 2007 the number of spouses/partners failing the post-entry test was 3,245; in 2008 the equivalent figure was 995, and in 2009 it fell again to 470.   This suggests people not passing a language test once in the UK has been declining sharply to a ‘miniscule’ number, thus not justifying the introduction of a pre-entry test.  Given there has also been a rise in the probationary period from two to five years, the Bibi lawyers argued that chances of passing the test are even higher now as entrants have even longer now to reach the required level of English for settlement purposes.
HO claimed these statistics – their own! - were so favourable for the appellant because the ESOL test was a relatively easier test though this was countered by the Bibi lawyers that then the government should have adopted another action to do something about the simplicity of the test rather than impose a pre-entry requirement!

One of the judges asked for statistics on how many people don’t sit the post-entry test once in the country, instead perhaps choosing to extend their leave to remain.  The Bibi lawyers pointed out that the onus was on the government to provide this info in order to justify their departure from the previous policy and that as the stats showed that the vast majority are in fact passing the test after entry, how could the HO justify keeping out this vast majority simply to guard against the possibility of a few not passing or sitting the test?  This represented a huge interference with the rights of a large number of people when the potential problem is in fact so small (i.e. people not sitting the test) that it hasn’t even been quantified!

2)   Level 1 is the same as that imposed on those who wish to come to the UK solely to work.

Therefore Home Office is, in effect, equating family immigration with those who come here to work, which is not what protecting family life is about.

Additionally, what is the point of a requirement that is considered too basic to actually help someone get a job; a level that would far more easily and quickly be reached in the UK, with the support of the UK spouse and surrounded by the language.

The expert witness, Dr Helena Wray, indicated that the pre-entry test is at such a level that it is of very little value as a means of communicating with English people in the United Kingdom: and that English is much more quickly and fully mastered once a person is within the community where that language is in everyday use.

However not all those coming here will seek to settle here; they may well leave in a couple of years.

3)   What drove the Home Office to impose a pre-entry requirement?  The reason given by the Home Office is integration, to help make lives of immigrations better – to help them speak to neighbours, be part of civic society, get a job….

The Bibi lawyers spent some time labouring this point, and I think it’s because it’s important that the government is not saying (unlike their reasoning for the £18,600 financial requirement) that its justification for a pre-entry requirement is because it has the right to control immigration or meet a net migration target etc., because then if such things are consequences of the requirement, then it’s unintended and thus more scope for courts to intervene.

Lawyers insisted that family life is not about coming here to work, especially when the family migration rules also require the sponsor to be earning a level of money which means the foreign spouse may not in fact even need to work!  Bibi lawyers argued rules changed by stealth given the pre-entry requirement, the £18,600 income requirement as well as the increase in probationary period to ILR from two to five years.

Whilst the Court of Appeal deemed the pre-entry requirement lawful, one judge did dissent, and indicated that it did not seem sensible to make people from abroad go to the trouble of learning English at centres which may be far away, representing obstacles to obtaining the necessary tuition and testing, combined with a society where there may be cultural and financial pressures, and when the UK sponsor would need to be send money outside Britain to help their spouse learn English.

The lawyers conceded that this action may see intelligible as a step against forced/sham marriages or where someone comes here to work or study to we ensure they can speak the language before coming in; but it is less acceptable in genuine cases where the goal is supposedly to make the incoming partner’s life better.

However if the true motive was integration, then as European parliament said, take in-country measures to encourage people to take part in society.

4)   Rules result in discrimination: direct and indirect.

The pre-entry requirement is not imposed on all foreign partners.  There are exemptions for those who:

·       pass an approved English language test with at least CEFR level A1 in speaking and listening
·       having an academic qualification that was taught in English and is recognised by UK NARIC as being equivalent to a UK bachelor’s degree i.e. a degree with no allowance for professional or vocational qualifications.
·       Are a national of Antigua and Barbuda, Australia, the Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, USA

In court arguments were made to the effect that the rules assumed all nationals from the exempted countries speak English to a certain standard, with no allowance for the fact that some won’t in fact speak any English at all e.g. those from the French speaking part of Canada, or that % of people passing the post-entry test from India (not exempt) is higher than the % of people passing the post-entry test from Jamaica (which is exempt!).

The judges:

The judges asked what the Bibi lawyers thought should happen to those who either don’t sit a post-entry test or overstay their visa.

It was agreed that applicants who choose not to sit the post-entry have the option to re-apply for leave to remain as an extension of their existing visa, however this would mean the applicant could not avail themselves of the benefits that come with ILR and indeed, subsequent citizenship.  What the lawyers didn’t point out was however is that renewing the visa is very expensive!  I believe the judge here was trying to ascertain that someone with three kids in the UK who after 5 years on his/her spouse visa doesn’t pass the post-entry test is unlikely to be deported because they will be able to just extend their leave to remain.

Bibi lawyers also agreed that that those who overstayed their visa should be removed, but prodding further on what-if scenarios of what should happen if overstayers had children, agreed that the starting point should be removal but then cases should be considered on their individual merits for discretionary leave.

 Watch this space for the arguments put forward by the Home Office in its attempt to justify the pre-entry requirement.

Friday 26 June 2015

The BIG Day - Third anniversary of UK's family immigration rules on 9th July 2015

9th July 2015 is the third anniversary of family immigration rules tearing apart British citizens from their family, or forcing us into exile.   The day promises to be action-packed with lots of opportunities to meet other families, campaigners, journalists, lawyers and politicians.

Children are welcome throughout the day, though obviously please be considerate during the parliament meeting and take them out of the room if they get restless.

Agenda for the day is as follows:

1) Meeting in the Houses of Parliament from 11am to 1pm

Please allow for some time to get through security.  

The panel includes 
  • Anne Longfield, Children's Commissioner for England
  • Colin Yeo, barrister and founder of the free movement blog
  • David Hanson, Shadow Immigration Minister
  • Manjit Gill QC, lead barrister on the MM and Bibi cases
  • Natalie Bennett, leader of the Green Party
  • Speaker from Bright Blue, a conservative thinktank 
plus more!  

Topics to be covered include updates on the MM and Bibi cases; interaction between EU treaty rights, families and human rights; impact of family immigration on children; and hopefully what the Green and Labour parties propose they will do to help divided families.

Register here if attending the parliament event: http://www.eventbrite.co.uk/e/family-migration-day-of-action-tickets-17066808283  

Morning event organised by MRN, with some support from BritCits.

2) Divided Families (BritCits, JCWI and MRN) demo outside the Home Office (Marsham St, London) from 2pm to 3pm, followed by

3) Drinks and networking session at the Red Lion pub, right by Westminster tube station, until late.

Pls also bring banners, posters (maybe photo of the family member who cant be there), design your own or print from here: https://www.facebook.com/britcits/media_set?set=a.327596310729023.100004359702040&type=3

This is a great opportunity to meet others impacted by these rules, make new friends, meet old ones, show solidarity and make your voice heard.

The more the merrier, so please do invite others.

Thursday 25 June 2015

BritCits Happy Family of the Week - Robert & Zahra

Robert & Zahra

Whilst we are now united, we do worry about those who would not be able to go through this extremely expensive process of appeals and multiple applications

Robert, a British citizen met Zahra from Bahrain, online in 2007 when they were 16 years old.  The two grew close very quickly, with the relationship adopting a romantic element around February 2008.  In August of the same year, Zahra moved from Bahrain to the United States for university. 

During her four years there, she visited Robert in the UK every winter, summer and spring break, moving here for her Master's degree in Human Rights in 2012.  

The couple planned to get married after Zahra had completed university and followed through on this, subsequently applying for a spouse visa.  However like so many, the couple didn’t fully understand the immigration rules, which were vague and complex.  Although the couple had cash savings of over £17,000 they did not yet earn in excess of £18,600 and so their application was put on hold in February 2014, pending the result of the MM case.

The couple did not know what to do, though hoped that it would eventually be successful.

In May 2014, whilst their application was still on hold and Home Office held on to Zahra's passport, Zahra applied for a job with Poppy Project which advocates for female victims of human trafficking.  She got the job which meant that now the couple earned well over £18,600, and as Zahra was legally working in the UK, her income could count towards the threshold as well.  (Those on student visas can work 20 hours a week during term time.)

The couple decided they would wait the six months needed to accumulate more payslips before re-applying or sending in more evidence to support their earlier application.   However, their application was refused in August 2014, still three months short of their needing six months worth of payslips to show a total income in excess of £18,600.

It was at this time that the couple contacted a solicitor, to put in an appeal with the aim being to delay the hearing for as long as possible so as to enable the couple to collate six months of payslips.

The couple received a court date for their immigration hearing in December 2014, which was surprisingly soon and thankfully convenient.  They travelled from their home in Cambridgeshire to Birmingham, with Robert’s mother and uncle for the hearing.  The family waited in court from 9am until 3pm when they were told that the Home Office representative was late to his Christmas party and therefore would only see one more case that afternoon, and it was not to be theirs! They were given a new hearing date in September 2015!

This last minute change, after all the stress and adrenalin nearly led to Zahra breaking down.  They were then advised by the solicitor that they may be better off withdrawing the appeal and starting a fresh application, although this meant losing their right to appeal.  However the prospect of spending nearly two years in limbo did not appeal, so they took the solicitor's advice, withdrawing the appeal and making a fresh application in January 2015. After 6 stressful and emotional weeks, the couple finally received the decision they had been hoping for, and Zahra was granted leave to remain for 30 months.

Whilst the couple is thankfully united, they continue to worry about those who would not be able to go through this extremely expensive process. Despite being in their early 20s, the couple is aware they are privileged enough to be able to pay the expensive fees for the appeal and multiple applications. 

Zahra still panics thinking about what would have happened if she hadn't gotten the job at the Poppy Project, and is humbled in realising that so many people in their situation are not as lucky. 

The couple firmly believes that this government not only mistreats the working classes, but also discriminates against young people who are just starting their careers and may not be able to meet the financial criteria. So many people in the UK remain blissfully unaware of these rules enforced by their own government, until it happens to someone close to them, when it's followed by disbelief and 'But they're British.'. 

It is a shameful part of the government’s policies. While btoh Zahra and Robert are very happy and grateful that this process has eventually worked for them, they are determined that they will not stop drawing attention to the unfair treatment loving families receive in this country.

Wednesday 24 June 2015

Jason McCartney, MP for Colne Valley

BritCits member Rob Jarvis has shared with us email exchanges he had with his MP, Jason McCartney for Colne Valley.  What struck us was Jason's very narrow definition of what constitutes a British family.  According to Jason, it appears that where British citizens have a spouse or parent who is not British, they do not constitute a British family. (!)

"On 23 Jun 2015, at 19:33, MCCARTNEY, Jason <jason.mccartney.mp@parliament.uk> wrote:

.....No British families have been split up, because by definition all the people in these families are not British.

The biggest issue on the doorstep during the election campaign was immigration. Voter after voter told me they didn’t want people moving into our country who could not speak the language and if were given residency would have access to schools, health care, etc when they are already overstretched. Only allowing those spouses into the country when the couple could pay their own way was one of our most popular policies amongst voters...."

This was in response to Rob pointing out that about 20,000 families have been impacted by UK immigration rules which include a pre-entry english language test, a minimum £18,600 financial threshold imposted on the British citizen alone (contrary to Jason's assertion that the couple must show they can pay their own way the rules in fact impose the requirement on the British sponsor alone) and an incredible amount of red tape that even sees those who meet all the requirements inexplicably refused and thus caught in a complex web of lawyers and appeals.

Jason's definition of British families is an astounding and insulting interpretation, targetting not only these 20,000 or so families, but the millions of other British citizens who happen to love a foreigner.

BritCits did offer Jason the opportunity to clarify what he meant, however his response to us and others who approached him in the same vein, was to block us on Twitter.  How charming to see an MP who really cares what voters think.  Feel free to contact Jason yourself on Twitter (beware he may block you too!) @jasonmccartney or by email: jason.mccartney.mp@parliament.uk and let him know what you think of his definition of 'British families'.

You can read the email exchange in full here.

BritCits interview

A couple of months ago I was interviewed by Toni Waterfall for a Charity Inspiration Interview for Markel Direct.  The interview is now online.


Friday 19 June 2015

BritCits newsletter 18th June 2015

The most recent news-letin from 18th June can be read here with previous versions available by clicking on 'Past Issues' on the top left hand side of the same link.

If you'd like to receive these directly into your inbox, please register here.

Thursday 18 June 2015

BritCits Divided Family of the Week - Ashleigh & Orisvel

Ashleigh, a British citizen and Orisvel, a Cuban citizen met in 2009 in Cuba.

As Ashleigh was still at university, the couple maintained their relationship long distance for three years, meeting during the three times a year Ashleigh could visit Cuba during university holidays, and Orisvel coming to the UIK on two occasions, under a visit visa.  The second of these times, just before Ashleigh's graduation, the couple got married in Ashleigh's home town. UK visit visas, the second where they got married in Ashleigh’s home town.

They had planned on Orisvel going back to Cuba shortly to apply for a spouse visa before returning to England, where he had an unconditional job offer.  However, unbeknownst to them, just two days after their marriage, the immigration rules changed which meant Ashleigh, being a young, recent graduate, could not meet the elusive £18,600 financial requirement.

Ashleigh postponed plans to complete her Master’s degree, and instead, took a job in a bar working over 60 hours a week in order to try and earn £18,600.  Even worse for the couple, Orisvel was banned by Cuba’s communist government from working in Cuba because he had married a foreigner and left Cuba to go to the UK.

The couple believed given their situation, future earnings would surely be taken into account, yet were refused the spouse visa.  On appeal, the couple evidenced their combined annual future earnings would be around £40,000, yet the appeal was refused.  Orisvel applied for another visit visa – it was difficult for Ashleigh to take off as the burden for earning the required level of income was on her alone – yet what is turning out to be standard practice after a failed spouse visa or settlement application, Home Office refused the visit visa as well.

After yet another two years apart, Ashleigh was finally able to evidence earnings in excess £18,600.  This time the couple paid for an immigration lawyer to check their paperwork, and then re-applied.  However, like thousands of others, their application was put on hold, with the Home Office somewhat bemusingly citing they did not meet the income threshold.

Several months of emails and phone calls to the embassy in Havana later, the application was refused – not because the financial requirement was not met, but because Ashleigh had not submitted a letter from her employer saying she worked there, even though the paperwork submitted included 12 months payslips, a p60, employment contract and even a letter from an accountant confirming that Ashleigh had earned £19,776.

Questions arise over why could the Home Office not just ask for this one missing document rather than refuse; why put the application on hold citing not meeting the income requirement only to refuse on different grounds months later; why did the immigration lawyer not pick up on the missing document (could the rules in fact be incredibly confusing and contradictory to the point of defying common sense?!).

Yet another couple trapped in Home Office bureaucracy despite having gone to so much effort to do everything right.