Personal musings on the MM judgment

The Court of Appeal took what seemed at the time an absurdly long four months to hand down a judgment that caused more anguish to more people than any other I am aware of.  The judges unanimously ruled in the government's favour, despite accepting:

“Admittedly there is a total ban on the entry of non-EEA partners where UK partner cannot reach the required minimum…appreciate that this ban could be life-long.” [147]

The judges admitted the rules lead to British citizens possibly never being able to have their husband or wife in the UK - thus condemning a national of this country to permanent exile, a life apart from their spouse and/or a single-parent upbringing.  Yes you have the right to marry whoever you choose, but not to live with them in your country of nationality.  Like allowing people to buy CD players while keeping the price of CDs unaffordable for the majority of population. (Better analogies welcome!) Yet they judges ruled breaching such a basic right is lawful.

Like others, I consoled myself.  Court of Appeal is known to be more conservative.  I was told it sometimes make extreme judgments to ensure a case finds its way to the Supreme Court.  Then nearly two years on, February 2016 saw arguments being made in front of a panel of seven judges in the highest court in the land: 

• Best interest of children not dealt with as a primary consideration
• MIR unreasonably high (three times subsistence level)
• MIR based on irrational - or at least weak - considerations of reducing burden on taxpayer and promoting integration
• Parliament cannot have intended to disentitle half the working population from marrying a foreign spouse  

Read a full overview here of previous hearings and judgments.

   

      Fast forward to February 2017, and on the one year anniversary of its hearing, the  Supreme Court handed down its judgment.  If only the wait was worth it. 

I find the judgment bereft of even a basic understanding of what these rules are doing to families. Okay, I'm not a judge or a lawyer.  I don't even have a law degree.  Maybe that's why I am left bemused, but also why I feel freer to voice my dismay and confusion.  Taking a year to hand down a judgment - this judgment - in a case which has been with the courts since 2013 and known to affect thousands British citizens is unacceptable.  

Yes, the judges apologised for the delay - there were other cases with similar issues they said.  I disagree. Unlike the other cases, evidence was presented that here we have British citizens whose relationship was not formed when immigration statuses of their partners was precarious.  The spouses do not have a criminal record.  There is no question mark over the genuineness of the relationships or how subsisting they are - save for the UK government intent on dividing families.  Even in BritCits' own membership, we have couples who keep Skype on on one screen, and together press the play button for Netflix on another, so that even across different continents they can maintain a semblance of normality.  This is echoed across families all over, a generation of kids growing up with Skype mummies and daddies. 

Much of the evidence put forward by the MM lawyers is just not addressed. There are arithmetic errors in the judgment.  It is devoid of any understanding of the hardship caused to families in expecting tribunals to rectify ridiculous Home Office refusals - the ever increasing waiting times for hearings, the expense of legal and court filing fees, the stress while the years pass by, all ignored. 



This is by no means an invitation to imitate the Daily Mail and attack the judges.  I have no doubt they simply did what they are legally obliged to.  I think they could have done more, and better.  But I am hardly unbiased. 

The problem is really with our political system where those who are elected and paid to represent us do so little.  Nadhim Zahawi spoke out against the Trump ban only when he realised it affected him.  He said as much on the Marr show.  Representatives should not have to personally experience an injustice before they speak out against it.  The opposition took the judgment lying down too.  Politicians for the most part just do not get it.

But I digress.  The Supreme Court judgment is not what I expected nor what families deserve.  However it's not all doom and gloom.  My next post on this topic will be a detailed overview of the judgment and more positive.  Well, a tad at least.

UK does humanity proud

UK has done humanity proud tonight.  Displays of immense heart and courage have taken place across several cities with people of all ages and backgrounds standing up against a tyrannical policy in another country that threatens to undermine our own values.  

It is a demonstration of solidarity against discriminatory and vile treatment by a government professing to be leaders of the free world (likely a self-appointed title, carrying responsibilities nevertheless).   It is also an essential action, and likely typical of more to come, what with Brexit driving UK to appear as USA's 51st state....literally, 100%, if some politicians can have their wicked way.  

Theresa May has consistently defied pleas from British citizens to be allowed to live with their family - family who would have no recourse to public funds anyway. Instead, she has instructed British citizens to maintain family ties over Skype, or better yet, leave the country altogether.  All in the aid of a misguided net migration target, forcing children into a single parent upbringing and elderly into a life of loneliness and isolation.  For four and a half years, families have suffered at the hands of this woman.  Rather than be content with damaging the lives of hundreds of thousands of people, she now wants to ignore the will of millions who who do not want to afford Trump a state visit.  She is complicit in her silence, guilty of turning a blind eye and a traitor in ignoring the very people she is paid to, and has taken an oath to, represent.

We will share some photos over the next few weeks.  These have been selected from social media because they give an insight into the spirit behind the people who came together today, because they are clever and funny, because they say what so many are thinking and because the sharing settings are 'global'. Apologies for not being able to credit the poster makers and the photographers.

It has been a very hard four and a half years bringing the plight of Brits with foreign family, victims of Theresa May's divisive policies to the foreground.  With more now engaged and directly affected by decisions taken by Downing Street, faith is once again restored that maybe, maybe, families won't have to be divided for much longer after all.

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