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

MM case

Finally just received the news we have all been waiting for since 11th July 2014.

The Supreme Court has ordered that the appeal in the case of MM, AM, AF and SJ (more commonly referred to as MM & Others) vs Secretary of State Home Department be GRANTED. (Fist pump!)

They go on to say that the applicant MM will be heard as the Lead Appeal, with the other cases to only deal with the points that MM has not dealt with.

Date to be confirmed though unlikely to be before autumn.  In the meantime, refresh your mind as to what happened at the Court of Appeal by reading this overview.

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

Update 15th June: Supreme Court website now denotes confirmation of the grant too: https://www.supremecourt.uk/docs/permission-to-appeal-2015-05.pdf

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.

BritCits Divided Family of the Week - Chrissie & Supon

Chrissie & Supon

“We are meant to be together, and we will be.”

Chrissie is a British citizen is married to Supon, from a Thai hilltribe.  They are affectionately known as "The Macadangdangs" by friends and family.

Chrissie always remembers they first day they met, on 2 November 2008.  She was returning to Chiang Mai in Thailand to catch up with friends.  She was teaching an English class to elephant mahouts when Supon approached her.  The first thing he said to her was "My name is, Supon and I'm a cheeky bugger".  Chrissie hasn’t stopped laughing since that day.

She fondly recalls the 2008 Loy Krathong festival, when together they lit a lantern and Supon said to her "wish for something"...

Although having met in late 2008, and having visited again twice during 2009, it wasn't until New Year's 2010, with the news of a formal job offer in Chiang Mai, that Chrissie and Supon finally thought; "This is our moment".

Chrissie returned to the UK for six months, working to pay off her university debt and convincing her family that she’d be okay living and working in Thailand.  She spoke with Supon every day, counting each day away until they would next see each other.

June 2010 came, one month left in the UK and Chrissie’s mum was diagnosed with breast cancer.  It was a really emotional time for the family and whilst Chrissie will always carry the guilt, she is grateful that her mother gave her blessings and encouraged Chrissie to follow her heart.

Focusing on making a life with Supon was now Chrissie’s motivation.  They lived in a small bamboo hut with their dog, based at the Elephant camp Supon worked at.  Chrissie ferried herself between work in Bangkok and Supon in Chiang Mai.

A year passed and Chrissie’s mum finally had the strength to visit.  For her birthday, Chrissie’s mum said "all I want to do is see my daughter".   It was a great few weeks. 

November 2011 came and the couple decided to honour Supon's family and culture and marry under Karen hill tribe tradition.  Chrissie’s parents and sister flew over for the wedding and things have been amazing ever since.

Chrissie’s family love Supon.  Supon was granted a visitor visa in 2013, coinciding unfortunately with Chrissie’s dad being diagnosed with prostate cancer.  Such a bittersweet moment.

Visiting the UK and showing Supon all the people and things she told him about – just to have him see where she came from was a massive deal.  It made Chrissie realise how much she misses her family and friends.  It made her realise she wanted to be there for her parents as they increasingly needed her more.  She feels she owes it to her sister and family to now share the burden.  She also needs the comfort of family.

However Chrissie earns £1000 less than the £18,600 required so everything is on hold.

Her wish when she lit the lantern in 2008; "If we are meant to be together, let us find a way"...and she still believes it. 

BritCits United Family of the Week - Katie & Cliff

Katie & Cliff

"What couple wants to spend twelve months - maybe more - living apart?!"

Katie is a British citizen directly affected by the new immigration rules. She moved to Cape Town, South Africa, in February 2010 to be with her partner, Cliff, a South African. He visited England on three separate occasions but has never lived in the UK. They got married in October 2010 in Cape Town after a 3-year relationship.

Katie’s father passed away in April 2012 after a long battle with cancer. Katie and Cliff feel now is the right time to move to the UK to be with her mother, living alone in Norfolk and needing support of her family.

Katie is a qualified primary school teacher with three years full-time experience. She is also a qualified Health and Social Care worker, having gained an NVQ Level 3. Cliff has many years’ experience in the finance sector and has just gained his degree in Business Administration. They both have skills and experience to offer the UK.

In the course of their research, they were shocked by implications of the new rules. They meet the criteria for a settlement visa however, believe the financial requirements to be absurd and incredibly harsh. Katie already has a UK offer of employment and there is no need to rely on public funding.

Katie has been working in Cape Town as an au pair for the past two and a half years, earning a reasonable salary. However, taking the fluctuating exchange rate into account and the fact that salaries are considerably lower in South Africa, it has not been possible for her to command an £18,600 gross annual salary. She is aware of the need for savings to cover the shortfall in salary but the amounts of money are totally absurd – how many people have tens of thousands of pounds lying around in cash that they don’t need to rely on for five years!

Katie has been told by an immigration consultant that she, as her husband's British sponsor, must take full financial responsibility, a situation which seems totally hopeless at the moment. She has also been told that, under the current rules, she will have to work for six or more months in the UK in order to earn the required salary while her husband remains in South Africa.

What married couple wants to spend six to twelve months living in separate countries? Where is the logic in these new changes?!

Katie is livid that virtually overnight people are expected to have thousands of pounds in savings if they do not meet the annual gross salary requirement which she finds ridiculous as it will cause many families to break up if forced to live separately!

Update:

1)    In early 2013, Katie was successful in obtaining a job paying over £18,600.  The couple had to wait 6 months (to gather required payslips) before applying for the spouse visa.  During the months apart, Katie & Cliff felt lucky to spend 3 weeks together when Katie visited Cape Town. “It was amazing to share quality time together” with November 2013 seeing Cliff finally granted a spouse visa and the couple spending Christmas together.

2)    Cliff joined several job agencies and after many interviews, in February 2014 secured a job in the finance department of an oil and gas company. A job he loves and has settled into well.
Despite the uncertainty around future visa applications, the couple decided to try for a baby.

3)    Caleb Thomas Frazer was born on 26th August 2014. The new parents are totally in love with their little man and feel blessed to have him in their live at a time when they had already overcome so many other hurdles.

4)    Cliff's visa is only for 2.5years so it is still at the back of our minds and they are aware they will have to start saving again soon in order to cover the costs of next application.
Although Katie is on maternity leave thankfully Cliff is in a job which pays over the £18,600 threshold.