Evidence that the Government is Failing British Families

Family Friendly?
The impact on children of the Family Migration Rules: A review of the financial requirements by the Children's Commissioner was launched on Wednesday.

Author : Mark Stokes Source :The Children's Commissioner/JCWI/Middlesex University/Divided Families et al Report

On Wednesday we saw a large turn out at Parliament for the launch of the Children's Commissioner's report into the impact of the family migration rules that were introduced in July 2012. 

The Boothroyd room was packed with families and those impacted by the rules.

In recent weeks serious questions are now being asked about the humanitarian face of immigration control both in the press and in Parliament. Compared with previous meetings this meeting had a very different feeling about it due to the wider debate of how we should treat migrants now happening in society in general. It was as if people suddenly had learned to listen and were now not afraid to support positive changes instead of just offering empty political gesturing . 

Despite many of the panel attending other events and previously hearing of the problems and the suffering that many British families with non-Eu partners faced under the new rules, they looked genuinely shocked at what they were reading and were moved by the personal accounts contained in the report.

Some of the more memorable comments from the panel were:-

"We have seen the rejection of the Little England approach to immigration over the last couple of weeks"

"Families are meant to be the bedrock of society"

"The minimum income rule discriminates and does not reflect the contributions the families make"

The general consensus of the panel of speakers was that the rules need to change and this is some of the evidence that is needed to help that happen. Which was summed up by them saying:-  

"the report tells a powerful story with strong imagery that should lead to change"

Some of the key findings contained within the report were:-

• "…..at least 15,000 children have been affected by changes.
• Children, most of whom are British citizens…. are suffering distress and anxiety as a result of separation from a parent….
• The financial requirements affect British citizens….who have started families with foreigners from outside the European Economic Area (EEA) and who wish to live in the UK. 
• The income level would not be met by almost half the adult population…
• ...many families with children may never be able to meet them. 
• The financial requirements are inflexible.    
• The threshold is too high and is discriminatory.
• British citizens who have lived and worked abroad and formed long-term relationships abroad are particularly penalised and find it very difficult to return to the UK.
• The financial requirements do not meet their stated policy aims………The Immigration Rules and accompanying guidance do not comply with the duty to safeguard and protect the best interests of all children in the UK. 
• …the Rules as drafted breach national and international law. 
• ...decision letters are often legally and factually incorrect. 
• In relative terms, the UK income threshold is the highest in the world and is the second highest in absolute terms. 
• Applications are expensive and difficult to make. This report calculates that the total costs for a single applicant to move from application to settlement are likely to exceed £6,000. 
• Applicants who cannot meet the financial requirements are refused visitor visas and cannot be with their children and partners for even short periods of time. 
• It is not only an immigration question but engages the fundamental rights of British citizens….. 
• In a small number of cases, respondents mentioned that the emotional and psychological strain of the separation had caused irreversible damage to the relationship with their partner."

"British citizens may also form relationships with those they met on holiday or during gap years, internships, study abroad schemes or similar. Global travel is now a normal part of life for many people including those of modest means, who may nevertheless be well educated (66% of the sample had degrees or equivalent qualifications). They do not understand why they cannot exercise what seems to them to be a straightforward right: to establish their family life in their own home country."

"This report concludes that the financial requirements do not strike the right balance and breach Article 8 ECHR"

Where to get a copy of the report?

The full pdf of the report can be downloaded from JCWI's web site using the following link or from the Children Commissioner's website using the following link

Based on the report a smaller discussion paper of 8 pages was also produced called 'Skype Families' it also can be downloaded by using the following link

Now we have this report with its damming evidence make sure your MP knows about this report and gets to read it. The more MP's that know about this the harder it will be for them to ignore the evidence.

Will the rules now change?

We do not know if, when or how the rules will change but the evidence and recommendations in this report will add to the growing pressure for change that can not be ignored. It is most probable that we may have to wait for the new immigration bill or the conclusion of the MM case in the Supreme Court before changes happen. Both of those are now only months away.

Some news articles and coverage about the Launch and the Report

http://www.theguardian.com/society/2015/sep/09/immigration-income-threshold-creates-thousands-of-skype-kids-says-report

http://www.bbc.co.uk/news/uk-34191606

http://www.politics.co.uk/blogs/2015/09/09/how-immigration-policy-brutalises-british-children

https://home.bt.com/news/uk-news/rules-on-foreign-spouses-creating-skype-families-childrens-commissioner-says-11364002627292

http://www.mdx.ac.uk/news/2015/09/occ-report-reveals-hardships-faced-by-skype-families

http://www.independent.co.uk/news/uk/home-news/strict-immigration-rules-drive-families-apart-by-separating-british-children-from-their-parents-10492226.html

http://www.bailiwickexpress.com/jsy/life/current-affairs/theres-now-15000-children-skype-families-who-only-see-one-parent-screen/

http://www.ein.org.uk/news/childrens-commissioner-family-migration-rules-separate-15000-children-parent

http://www.portsmouth.co.uk/news/national/rules-on-foreign-spouses-creating-skype-families-children-s-commissioner-says-1-6947437

http://www.huffingtonpost.co.uk/2015/09/09/immigration-rules-uk-skype-families_n_8108458.html

http://www.presstv.ir/Detail/2015/09/09/428470/UK-migration-rules-separating-families-

http://timesofindia.indiatimes.com/world/uk/UK-seeing-a-generation-of-migrant-children-growing-up-in-Skype-families/articleshow/48890557.cms

https://www.politicshome.com/home-affairs/articles/story/uks-immigration-rules-creating-skype-families

http://www.newasianpost.com/new-immigration-controls-impact-thousands-of-british-children/

http://www.buzzfeed.com/jamesball/15000-children-are-living-without-one-of-their-parents-becau

http://ukasiaonline.com/separation-how-the-coalition-s-visa-rules-have-created-thousands-of-skype-families.html

http://www.dailymail.co.uk/wires/pa/article-3227308/Rules-foreign-spouses-creating-Skype-families-Childrens-Commissioner-says.html

The MM case has made a big step forward on its journey through the English Court system.

Author : Mark Stokes (LondonMark)

The MM case has made a big step forward on its journey through the English Court system yesterday. (The official notice should be published on the Supreme Courts website at the end of this month when it publishes the monthly list of permissions to appeal)

Even though there seemed to be a lack of news during the last few months many things have been happening in the background and the legal teams have been kept busy. The first hurdle they have had to overcome has been applying for the case to be funded from Legal Aid.

Just this month the legal aid legislation has been criticised in a ruling at the court of appeal as being ‘disgracefully complex’ by Lord Justice McCombe. Our learned friend Justice Blake had already in his Bunning ruling back in November 2013 said that the draft of the new regulations 'are likely to give rise to very real difficulty within the profession in knowing how to apply for legal aid'

As several different parties are involved in this case each one had to apply individually and a costed case plan submitted under the new system. The last of the applications seeking permission to appeal were finally able to be made in January after this hurdle had been overcome.

When being considered for legal aid, generally any case that has less than a 50% chance of being successful at a substantive final hearing is refused legal aid at the stage of evaluating its prospects. So by gaining legal aid funding the case has already been evaluated as having a more than 50% chance of being successful.

During July-September 2014 out of 81 immigration case applications only 11 were granted legal aid (page 35 of Legal Aid Statistics in England and Wales July to September 2014)

Before everybody gets too optimistic we do not know what they used as the measure of success. In this case it could be that success is only gaining clarity that the new rules were legal or not.

Why is gaining permission to appeal such a big step forward?

This is like having a provisional on paper hearing to decide if the case has a strong enough argument to be heard in the Supreme Court. 

The majority of applications are refused permission to appeal.

 

So how hard is it to gain permission?

In April (a month with the Easter break) only one case applied to appeal to the Supreme Court and was refused permission to appeal.

In March of this year 23 cases applied to appeal to the Supreme Court; only 3 were given the permission to appeal and back in January/February out of 36 applications only 11 were granted permission to appeal.

‬The following is taken from the Supreme Courts guide to proceedings. It is written for people with out legal representatives to help the layperson understand what happens without so much legal jargon. The court procedure is the same even wether you have legal representation or not.

"The test which the Court applies is, however, a strict one. Permission to appeal is only granted for applications that, in the opinion of the Justices, raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal."

So the court by granting the permission to appeal has decided that there is a strong argument on a point of law that is important to the general public.

 

So what happens now?

The next step is the full official application must be submitted for a hearing date.

"The listing officer of the Supreme Court will contact the parties and make arrangements for the appeal hearing to be fixed. Most appeals take two days and, wherever possible hearing dates are fixed having regard to the availability of the parties and their representatives."

The quickest this could happen in an ideal world with everything being fast tracked would be 3 working months. Given that the Supreme Court does not sit in August and September the earliest possible date would be the end of October 2015 for the hearing.

But a related case Bibi (English language requirement) had to wait 10 months after the permission to appeal was granted (April 2014) until their hearing date (February 2015). 

So we could possibly be looking at as late as April 2016 for this case to be heard at the Supreme Court.  The hearings usually take place over 2 days with the the appellant having the opportunity to state their arguments first. The respondent to the appeal will then make their submissions and then appellant has a right of 'reply' before the Judges consider all the arguments.

Since May 2015 nearly all the Supreme Court hearings can be viewed online, live or on demand at a later time, which is good news for those who cannot travel to the court on the day.

In nearly all cases, the Court will not announce its decision at the end of the hearing. The Justices prepare a written judgment which is sent to the parties after the hearing. The judgment will be sent to the parties in draft first and then the Justices will formally 'hand down' their decision at a further hearing.

As in the case of Bibi the handing down of the judgment could take several months from the actual hearing.

This means we will most probably get a decision just before the 4th anniversary of the introduction of the 9th July 2012 rules.

We just hope we do not have to wait the 800 years the Barons and Bishops had to in order to get a hearing date ;)

In the meantime, again you can review what happened at the Court of Appeal by reading this overview.

Note the hashtag for tweets relating to this case on Twitter is : #MMcase

Delays to decisions so the Home Office can apply new laws/rules retrospectively.

There is a great British legacy and tradition of being one of the fairest and just societies in the world observing a system of 'rule of law'. Such is the legacy that many legal systems around the world have been heavily influenced by the British system.

But many British people are now becoming increasingly disillusioned through their dealings with the British system of democracy and law.

Britain is now ranked 13th out of 99 legal systems in the world. Even in Europe it is ranked 9th out of 24 countries. 

http://data.worldjusticeproject.org/

The rule of law depends on people who are subject to such laws being able to understand how those laws apply to them. When laws and changes are deliberately hidden through over complexity or confusion then they are being used purely as tools of oppression.

"In a society governed by the rule of law, the government and its officials and agents are subject to and held accountable under the law" In the Uk with the increasing withdrawal of appeal rights and restrictions on access to legal aid it is becoming increasingly difficult to hold the government to account.

Laws should be clear, publicised, stable, and just; applied evenly; and protect fundamental rights, including the security of persons and property.

Current UK immigration law is anything but!  The laws and current changes to the laws are laid out in such a way that the very people that these laws and rules apply would face great difficulty understanding what changes are taking place and how they may be impacted. 

One such example is the changes released on the 10th July 2014 the day before the MM ruling in the Court of Appeal.  

https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc532-10-july-2014

In these changes I find it very difficult to fully understand what changes are really being made despite in my professional life having many years experience dealing with complex legal contracts on a daily basis. 

My first concern in these changes is that many are being applied retrospectively especially those affecting spouse visas.

"The changes .............of this statement take effect on 28 July 2014 and apply to all applications to which paragraphs 276ADE to 276DH and Appendix FM apply (or can be applied by virtue of the Immigration Rules), and to any other ECHR Article 8 claims (save for those from foreign criminals), and which are decided on or after that date."

“A279. Paragraphs 398-399D apply to all immigration decisions made further to applications under Part 8 and paragraphs 276A-276D where a decision is made on or after 28 July 2014, irrespective of the date the application was made.”.

 They have also brought in a new justification for decisions 

 "....in doing so also reflects the relevant public interest considerations"

where one of those considerations is now    

"controlling immigration to safeguard the UK’s economic well-being."

There are also changes to definitions of why exemptions can be considered

"“insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

But one of the most worrying and confusing parts is especially for all those 500+ in UK application that put on hold pending the out come of the MM appeal.

"7.19. The non-suspensive appeals provision, inserted by section 17(3) of the Immigration Act 2014, allows the Secretary of State to certify an appeal where an individual is liable to deportation when, despite the appeals process not having been begun or not having been exhausted, removal of a person to the country or territory to which they are proposed to be removed, pending the outcome of an appeal in relation to their claim, would not be unlawful under section 6 of the Human Rights Act 1998, for example the individual would not face a real risk of serious irreversible harm if removed."

Does this mean that the Home Secretary can now remove people from the UK even while they are appealing as first announced in the  Immigration Act 2014 Summary of Provisions?

"Clause 12: Place from which an appeal may be brought or continued

An appellant can remain in the UK to bring or continue his appeal if the original claim was made whilst the person was in the UK. If however, the Secretary of State has certified the appeal as ‘clearly unfounded’ or a person can be removed to a safe third country, the appeal can only take place once the person has left the UK.

In the case of someone liable to deportation who raises a human rights claim the default is to remove them from the UK by certifying the appeal on the basis that they would not face, before the appeals process is exhausted ‘a real risk of serious irreversible harm if removed to [that] country or territory’. The right of appeal is then exercised from abroad."

Or does this only apply to criminals?

This is a very worrying time for those in the UK impacted by the MM ruling.

Have their rights been totally trampled on?!

Their decisions are further delayed just so these new rules of the Immigration Act 2014 can be applied retrospectively.

The timing of these changes is very worrying. 

First it has been rushed through in the last 2 weeks of parliament in the rush before the summer break.

Secondly it come into effect at the start of the Courts summer break making any injunctions against deportations much more difficult to obtain until the courts are back in October.

Will we see the Government attempt mass deportations over the summer period?

Are they so heartless and so determined to destroy the British Legal System!!!!!!!!

Is putting applications on hold an attempt to prevent people's right to appeal!

Hidden away on page 7 of the Statement of Intent: Family Migration  June 2012 before the new rules came in the following appeared.

"19.  The 2011 family migration consultation also consulted on whether the full right of appeal should be retained for the refusal of a visa to visit a family member in the UK. In the light of the consultation, the Government has decided that it should not. The Crime and Courts Bill, published on 11 May 2012, contains provision to abolish the full right of appeal.

A limited right of appeal will remain on human rights and race discrimination grounds. Subject to Parliamentary approval and Royal Assent, this provision is expected to be implemented by 2014."

So Is the act of putting so many applications on hold a delaying tactic to bring the decisions under a new law that abolishes people's full right of appeal?

http://www.scribd.com/doc/129790309/soi-fam-mig

UKBA site still exists in archived form

For those people trying to find information, documents or links that were contained on the old UKBA site you will find that all the previous links are now forwarded to the new .gov.uk site.  Often this results in a general page coming up and not the information or document that you were looking for.

This can be a big problem when looking for things like the rules or guidance in operation at the time of a past application.

There is a way around this and the UKBA site still exists with all the old information thanks to the National archives.

http://webarchive.nationalarchives.gov.uk/*/http://www.ukba.homeoffice.gov.uk

So no matter how any Government would like to hide or rewrite history in the case of the online world there is a snapshot of what was there thanks to the National Archives.

The UKBA archive covers the period from August 2008 through until  February 2014.