"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.

Tuesday, 7 July 2015

MM case

We earlier looked at the first two prongs of the attack on UK families, by UK politicians:

1) Raising the age at which a British citizen could sponsor a non-EEA partner to age 21, in Quila, which the Supreme Court deemed was unlawful and hence the age was brought back down to 18
2) Introduction of a pre-entry English language test, on which a ruling from the Supreme Court is awaited, in Bibi.

This time we look at the third prong which has also been the most damaging in terms of the number of people affected, relating to a case most readers will be familiar wit - the MM case, challenging the £18,600 threshold, but also exclusion of third party support, bizarre lump sum multiplier to make up salary shortfalls, rigidity in application of the rules and no allowance for Article 8 and s55 (best interest of children) by caseworkers, amongst other things.

BritCits got involved just before the case was heard at the Court of Appeal.  We worked with the MM lawyers and submitted  this witness statement .  Also read our overview of the two-day hearing and the horrid Court of Appeal judgment.

On 19th May 2015, the Supreme Court granted permission to appeal the Court of Appeal’s judgment to all four of the appellants with 'MM' as the Lead Appeal and the other three dealing only with the points MM does not.

No date for the hearing has been given yet but the legal team expect it to be no earlier than November 2015.  I hope by this time next year at least we have in place family immigration rules that are fair!

Monday, 6 July 2015

Surinder Singh country guide

About to embark on exercising your free movement rights? Not sure how to go about applying for a Residence Card, or finding a job? Wish to know what the best areas are for housing, schools and shopping? 

Read our Surinder Singh country guide collating experiences of members to help make your journey smoother.

If you have any suggestions or tips to help others, please let us know, and we'll include it in the next update.

Friday, 3 July 2015

Legal challenge to the ADR rules

On 9th July 2012, UK brought in rules for sponsoring adult dependant relatives (parents, grandparents) which have been deemed a ban masquerading as a rule. The earlier rules already required evidence to show the sponsor had the means to look after their parents without recourse to public funds.  The earlier rules also had scope for well-off parents to move to the UK as retired people of independent means, though this is no longer allowed either. 

The rules are found to be so harsh because they now only allow for sponsoring an ADR where they physically are unable to dress, bathe or cook for themselves. 

However even if the parent did have trouble bathing, dressing and cooking that is not enough for them to meet the criteria.  You as the sponsor would ALSO need to show:

1) there are no family or close friends in your parent's home country who can look after them
2) there is no one you can employ in your parent's home country who can look after them, or,
 that you and your parents cannot afford to pay someone to help with their care because it is so expensive, even with the help of social care, but
3) that you do have the money to look after them in the UK without recourse to public funds.

It's a very rare situation where someone has money to look after a bed-ridden parent in the UK, but not enough to say pay someone to look after them.  Monaco is the only example we can think of!  Furthermore, when your parents are in that vulnerable situation, is that really when you want to be battling the Home Office, spending years in court?  There is absolutely no scope to sponsor reasonably healthy or parents with mild problems.

I have been speaking out against these rules online since June 2012, and more vocally since 9th July 2012.  It's taken a couple of years to get the issue out there enough and I was very pleased when with all my pushing and prodding, including as part of the Divided Families campaign, convinced JCWI to take a serious look at these rules, and thus we worked with them to put out this report.   Our understanding is that after some consideration, JCWI chose not to pursue a legal challenge of the ADR rules, however this report does form useful evidence.  

As the rules are not going to magically change, especially now with a Tory government, BritCits decided to try to get the rules overturned ourselves.  However we need your support.  Please don’t wait for something to happen to your parents before you start taking an interest in getting these rules changed as time and energy will be scarce then, and know that we will be stronger if we all fight this together. 

What is the process?
Set out below is our understanding of how things are likely to unfold.
 
First, we must persuade a judge that material and arguments we set out on paper point to an arguable case, hence a full hearing in the High Court is justified.

We send the Government Legal Department (formerly Treasury Solicitors), as legal representatives of the Home Office, a copy of our 'bundle' of papers setting out our case, after which they will have 21 days (or longer if they request and are granted an extension) to file an Acknowledgment of Service and Summary Grounds of Defence, setting out why the Home Office believes our case is not arguable and thus shouldn't proceed.

Second stage is for a judge to consider our bundle as well as the response from the Home Office.  Two options: judge could consider our case is arguable, or otherwise.

1) If the judge considers our papers do not disclose an arguable case, permission to proceed is refused. The good side then reviews the reasons for refusal, with a view to applying for an oral hearing to put forward our case (this will cost more money).   Worst case scenario - permission is refused and we're ordered to pay Home Office's costs.

2) If the judge decides our case is arguable, permission to proceed with a judicial review is granted and the PCO application considered.

Home Office then has a further 35 days to file and send a Detailed Grounds of Defence, and any evidence on which it intends to rely in court.  We also get time to file and send our evidence in reply to the Home Office's evidence.

The actual hearing date depends on the availability of the barristers, judges and courtroom.

Who are our lawyers?
We have instructed lawyers at Migrant's Law Project (Islington Law Centre) who have also been involved in the recent Detention Action defeat of the Home Office's Detained Fast Track appeals.  We have two barristers including a QC.  

Our legal team is VERY good.

How much will this cost?
Our lawyers have agreed to work on a conditional fee arrangement - i.e. no-win-no-fee basis.  We need to raise funds to ensure we can pay:
  • costs incurred whether we win or lose; whether we get permission to have a hearing or not. This includes filing fees, disbursements such as travel costs, translation fees etc.
  • our lawyers fees if we win (capped at the PCO)
  • the Home Office costs if we lose and judge orders that we pay the Home Office (capped at the PCO)
We don't know what the PCO will be set at, but are provisionally aiming for £20,000. Please donate through JustGiving. As BritCits is a registered charity, UK taxpayers should contact HMRC to avail of tax benefits.  We will have fundraising events if needed, once permission is granted and we know what level the PCO has been set at.

What's a PCO?
PCO stands for Protection Costs Order, whereby we are effectively asking the judge to set a maximum amount we would be liable to pay in order to pursue this judicial review (JR).  

The judge will look at several things:
  • level of public interest in this JR i.e. if BritCits does not proceed with the case then will the court instead be faced with multiple individual claimants, thereby actually costing the UK taxpayer more? 
  • likelihood of success
  • size and resources of BritCits
  • reasonable and genuine attempts we have made to raise the funds needed (in order to reduce reliance on other taxpayers) 
As part of our case is that the rules in practice disproportionately impact those who are working professionals, on good salaries and thus have the means to look after their parents in the UK without recourse to public funds, it is important we show that this affected group is supporting this cause.  If we don't raise enough funds, the Home Office would understandably want that to be evidence of insufficient public interest.

What's happened to date?
Our lawyers have sent a Pre-Action Protocol letter (PAP) to the Home Office, formally setting out our intention to challenge these rules, providing a summary of the arguments in support of this challenge, and what Home Office would need to do if they wish to avoid this going to court (i.e. change the rules!).    We also requested data from the Home Office, including historic stats on number of applications granted and refused to show trends, as well as info on their reasoning behind these rules as set out in their 2012 Impact Assessment.

The Home Office did reply but refused to change the rules, nor did they provide the data requested.
 
What will the evidence consist of?
Several bits, but very importantly, your witness statements. MLP has been in touch with those who have agreed to provide witness statements to obtain more information about your family situation and experience with the Home Office.  We were particularly keen to look at families where:
  • ADR is in a compelling situation
  • minor children are missing relationship with grandparents
  • UK sponsor working in health care, research, teaching etc.
  • ADR been refused visitor or settlement visa - gives us insight into mind-set of Home Office & judges
  • UK sponsor has relocated to another country where s/he can be with their parents.
Several law firms have also agreed to provide statements on their experience of the rules and advice they are giving their clients to effectively not apply, as the chances of success are slim to none.

How can you help?
Contact us to let us know how you are impacted at britcits@gmail.com
Donate and help us with the fundraising.
Tell your friends, family, and colleagues about this challenge.





Thursday, 2 July 2015

BritCits Happy Family of the Week - Abhay

Abhay

My mother was refused a visit visa, and now the Home Office, despite the Judge ruling in favour of granting a settlement visa, continues to refuse my mother entry.

Abhay is a UK resident.  He has been living here for several years, and during this time diligently working in a role which puts him in the higher-rate tax payer cateogry and claiming no benefits. 

Abhay, his wife and child have all satisfied the requirements for British citizenship.  However, despite being a net contributor, Abhay is being forced to re-assess his future in the UK, because of his experience with the immigration rules which mean not only has his mother been refused a visa to settle in the UK, but also prevented from visiting them.    

When Abhay was 12, his father passed away. As the eldest of four children, Abhay was a huge support to his mother, prematurely becoming the man of the house, and his mother’s crutch and confidant.  As soon as he was old enough, Abhay worked to help provide financially for the family, ensuring his siblings got access to an excellent education and as per Indian culture also paying for his sisters’ weddings.  Abhay shouldered the responsibility of a father and in doing so, there naturally developed a special bond between mother and her eldest child.  There is no doubt that his mother is entirely dependent on Abhay.

As time passed, and the other kids flew the nest, including one younger sibling also now based in the UK, Abhay’s mother found herself alone.  She has trouble with things that the younger generation takes for granted – mobile phones, going out shopping, using an ATM.   With two of her children in the UK, including a grandchild, Abhay was keen for his mother to come visit them. There was no intention that his mother would live here.  At her age, to adjust to a new life, culture and indeed, British winter, would be very difficult.   However, when a visa to visit the UK was refused, Abhay decided to apply for a settlement visa for his mum, as this would allow her to visit as frequently as she wanted for five years, without further visa hassles.

To his surprise, UKBA refused the application.  This is despite all the evidence showing Abhay’s mum:

·         lives alone in India.
·         is unable to leave her apartment complex on her own
·         doesn’t have any close family to help with everyday tasks; running errands, going to the temple,     going to see the doctor.
·         is entirely financially dependent on Abhay
·         is unable to use modern technology like ATMs or mobile phones
·         doesn’t have many friends where she lives having lived there for a short time
·         when unwell and in pain, was forced to phone Abhay in the UK who then arranged for a neighbour to take his mum to the hospital

As part of the settlement visa application, Abhay’s mum was required to travel hundreds of miles for a face to face interview at the UK embassy in Chennai.  Luckily, a distant cousin happened to be around at the time and Abhay called in some favours to arrange for his mother to be accompanied – Abhay paying for all the necessary travel and accommodation costs of both his mother and the cousin. 

Little did he know that by being able to arrange this, the Home Office would use this as an excuse to refuse the visa by saying his mother was not alone.  That the cousin is distant, and not living in the same city as his mother – or even more importantly, that the responsibility for his mother’s welfare falls on Abhay, not a distant cousin, seems to have been conveniently ignored.

Indeed, if Abhay hadn’t been able to arrange for his mother to be accompanied, the application would have also been refused as Home Office would say that the applicant did not attend the interview as required!

The Home Office refused the visa; Abhay appealed and the Judge ruled in favour of the family, citing that there is a close tie beyond those of only an emotional nature between Abhay and his mother, what with Abhay having, to all intents and purposes, provided a roof over not only his mother’s head, but the younger siblings as well.  The Judge ruled that Abhay’s mother is entirely dependent on her son and therefore maintained that his mother should be granted a visa to settle in the UK.

Unfortunately, despite what should have been a delayed happy ending, the Home Office has appealed and for this family the battle continues. 

According to the Home Office, the Judge has not taken into account the immigration rules (even though he has).  

According to the Home Office, the Judge failed to give reasons as to why Abhay’s mother is dependent on her (even though this is in fact very clearly indicated).

However Abhay will fight the battle for the right of a son to look after his mother. For a son to not abandon a mother who raised four children on her own.  For the bond to develop between grandchild and grandmother. 

The result and nature of the battle will determine the future of this family in the UK.  Whether we retain the valued skills of Abhay, or lose them to another country willing to afford family rights to its migrants, time will tell.

Update: Abhay’s mother is finally in receipt of her settlement visa. Abhay has bought a larger house and is glad to finally be able to live with and look after his mother who travels back and forth between India and UK, relieved that her entry is no longer subject to the whim of caseworkers.