"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.

Sunday, 19 June 2016

BC newsletters from May

The newsletter from 4th May 2016 is now online, covering:
  • ADR Approved Judgment
  • EU referendum
  • Emigration...
  • Too poor to eat - homelessness
  • Family of the week - letter from a grandma
The newsletter from 24th May 2016 is now online, covering:
  • In the news - deportations.
  • EU referendum
  • Petition protesting against rise in fees
  • Donations
  • Queen's Speech
Previous versions are available by clicking on 'Past Issues' on the top left hand side at the link above.

If you'd like to receive the newsletters directly into your inbox, please sign up here.

Sunday, 12 June 2016

Brexit and the EU


Nigel Farage on last week's Question Time turned the British passport into a prop, saying that with ‘European Union’ emblazoned across it 508 million EU citizens could come to the UK anytime if they so wish.  He in my view was trying to build a fear that 508 million people would just turn up to our little island and sink it; and successful given by the fear on the faces of some in the audience.  

So let’s take a step back and address some of the Brexit issues.

Will all of EU’s population just come to the UK?

This is where the distinction between will and can is very important. All EU citizens can (subject to meeting certain conditions – see below) move to the UK, just as all British citizens can (subject to meeting the same restrictions) move to any country in the EU.  This doesn't mean that they will.  Additionally, the receiving country retains the legal right under EU law, to refuse an EU citizen entry on grounds of public policy, public security and public health.

Farage’s fearmongering tactic is akin to saying all British and other EU citizens can move to say, France - how likely is that? Heck, the chance of every single British citizen leaving the UK at all is nil – ditto for other countries.  We love our country – it’s a beautiful place.  But our footpaths are not lined with gold and Brits don’t hold a monopoly on patriotism.
  
Indeed, despite Greece having seen a lot of issues, and despite every Greek citizen having the right to move to the UK to work or study, and yes claim job seekers allowance for a limited period while they look for a job (which if they don’t find they must leave the UK), UK is not overrun with people from Greece – no one says there are too many Greeks in the country. 

So the assertion that problems in Eurozone will lead to the locals there flocking to our shores must be wrong.  Evidence suggests that by and large people prefer to stay where they are.

I mentioned restrictions. What are they? 

If any EU citizen wants to move to another member state, it must only be to:
·      Work
·      Study
·      Live here self-sufficiently, whether as an unemployed person or retired.

(A student or self-sufficient EU citizen must have comprehensive sickness insurance – they cannot just rely on the NHS if they are moving to the UK for example.)

 Now let’s imagine UK votes for a Brexit.

Brexit – what kind of terms will we have with the EU? 

I don’t know. No one does. And that’s telling.  Brexit supporters don’t know either – they certainly don’t agree on what kind of deal we will have with the EU, if any. So if we do leave, the majority of British citizens will not have the kind of relationship with the EU they wanted – obviously not those who voted to remain, but not even all those who voted to leave.

Will we…?

·      Retain EEA membership like Norway.  Norway must for the most part abide by all EU legislation though it gets no say in what that legislation is, and it has free movement of people.  Why would Brexiteers be happier with this than what we have now?

·      Let’s be like the Swiss some say.  Switzerland also has free movement of people, but as neither a member of the EU nor EEA, it does not have free movement of services – which form a significant portion of UK’s exports and the reason why so many banks have their European headquarters in the UK instead of Switzerland.  You may not like banks and think good riddance if they move to France or Belgium or wherever.  But what about all the jobs that go with it? The investment, the taxes and the hugely detrimental impact to our economy?  Yes house prices may go down – you may finally be able to get on the housing ladder. But will you have a job with which to pay the mortgage every month?

·      A “British” model – response of a Brexiteer to Miliband asking on QT what kind of model we would have if we left.  A response not an answer, but lost in the applause that followed such a statement of British supremacy The uber optimistic think we can somehow retain free movement of goods, services and capital – but not people.   I read a good analogy of this – unfortunately as I cannot recall where I shall have to steal it without referencing the source.  This blinkered view is akin to resigning from your job with the expectation that you’ll be able to negotiate it back for the same or higher salary, but without all the pesky bits you don’t like.  Why would your employer (or the EU) agree to this especially when it’s likely to lead would lead to colleagues (other member states) demanding the same treatment?

‘They need us more than we need them’.

While stats indicate we import more from the EU than export to it in £ terms, as a percentage of GDP, the situation is quite another. Our exports to the EU are 13% of our GDP, whereas EU sells is 3% of its GDP.  So a trade war is likely to hit UK harder as actually, we need them more than they need us.

Without the EU we have a spare £350 million a week – it says so on the Brexit bus!
Such a bald-faced lie, it’s incredible that anyone is falling for it.  Dirty politics - say something enough times and that’s all people will remember. 

Say you and I were in a business relationship where I gave you £100 a month and you gave me £66 a month.  Would it be right for me to think oh if only I could get out of this relationship I’d have a spare £100 a month, or would getting out of the relationship leave me with only £34 extra a month?

Some leavers find this too confusing to think through. It really isn’t.

Furthermore, ask yourself, have those who are claiming we will have a spare £X a month if we leave committing to where exactly they will spend the money?  Will they continue to subsidise British farmers the way the EU does?  Yes we could spend more money on NHS, schools, housing.  But will we? 

Do you trust the politicians who reduce poverty simply by redefining it? Under whose watch we have seen so many divided families, bedroom tax, cuts in legal aid, NHS nearly brought to its knees, steep rise in homelessness and use of food banks.  Be wary of handing even more power to those who have not proven themselves to be trustworthy.

Australian-style points based system

If I had a penny every time I heard this!  Tell me more. What is this system?  How would it work?  How is it different to the points-based system we already have? Is it different?

The points-based system’s general premise is to allow the bringing in of skilled migrants only – so doctors, nurses, IT professionals etc.  This is essentially an extension of what already have…but the purpose would be to stop EU workers who are ‘unskilled’ or even skilled, albeit not in the areas we’re wanting more people in, from coming into the UK. 

Some thoughts on this:

1)    Who will do the ‘unskilled’ work if only skilled migrants who pass the Australian style points based system are allowed in?  British citizens - really? We want to live in a country where the roles requiring fewer qualifications, paying lower wages, are reserved for Brits because the only migrants we allow in are skilled migrants who are naturally not going to jump through hoops to get here with their professional qualifications, simply to work as cleaners, shop assistants?

2)    If the goal is to create a level playing field for all, we are essentially replacing EU citizens who come in under free movement, with a combination of EU and non-EU migrants under the points-based system, simultaneously also making it harder for British citizens to migrate elsewhere – will this reduce net migration by very much if at all, especially as leavers say an exit allow us to let in more Commonwealth citizens.
  
3)    Will we adopt the Australian system for families of British citizens? No income requirement at all to sponsor a foreign spouse/partner; a clear method to sponsor a parent/grandparent.  If not, what will our family immigration policy look like?

4)    In cutting net migration back down to below 100,000, which migrants will UK not let in and how will more of those settled here, including British citizens, be ‘encouraged’ to leave?

Sovereignty


British Members of European Parliament are elected by voters in the UK – so claims that EU is not democratic is false.  There is a commissioner from every member state, including the UK.  Yes this commissioner isn’t elected by the people, but then neither is the British Prime Minister, and 50% of our Houses of Parliament is unelected – the House of Lords.  

Much is said about the EU imposing laws on us. Our MEPs get a say in whether legislation is passed or not; if they don't turn up to vote, we cannot blame the EU. But just as MPs don't always get their way in Westminster, neither can they in EU.  That is democracy.

And for those still not happy with UK having to comply with EEA legislation - which laws do you not like? Which do you like? Is it worth having the ones you don't like for the ones you do?  


The purpose of the above is to request you please take further what we have politicians claiming – think ahead of what it means, what the consequence are, and how the claims on both sides, can be achieved.  

Free movement is to be celebrated; a glorious option for British citizens to live, work, study, retire in any other member state - in the aim of reducing other people's rights are we really prepared to give away our own rights?  Free movement and the EU, for many readers of this blog, has been a lifeline when Westminster didn't think we had a right to live with our family.  EU is a safety net in many other aspects - you may just not have come across them yet, but one day, we or someone we love, may well need this safety net when the political short-termism of Westminster politicians tries to create more havoc in our lives, just as they have done with UK family immigration rules.

All said and done though, whichever way you are leaning, please do vote June 23rd.

BC newsletters from April

The newsletter from 6th April 2016  is now online, covering:
  • ADR in High Court
  • Genuineness of relationships
  • Damages paid for unlawful detention
  • Family of the week - Dominic, Katy & Madeline

The newsletter from 17th April 2016  is now online, covering:
  • Right to Remain blog post
  • EEA applications - priority processing?
  • Damages paid for unlawful detention

The newsletter from 22nd April 2016 is now online, covering the events of the ADR hearing at the High Court.

Previous versions are available by clicking on 'Past Issues' on the top left hand side at the link above.

If you'd like to receive the newsletters directly into your inbox, please sign up here.

Wednesday, 4 May 2016

Member emails about UK immigration rules forcing relocation to unsafe countries.

Below is an email I received a couple of weeks ago from one of our members, Sue. Shared with her consent.

Sue is a British citizen and grandmother writing to me about how her daughter and grandson, also British citizens, have been left with no choice but to move to Turkey as the only way for the little boy to grow up with his daddy.  There are too many families now divided or living in exile and some, like Sue's, living in a country which it would not be unreasonable to deem unsafe.  

It never ceases to amaze me this conviction, arrogant expectation even, from our politicians that another country must let us - foreigners - in to live with our partner/parent, when they have put in rules which mean own country will not do the same for us.

“Hi Sonel,

Hope you are keeping well under the pressure!!

I just thought I would let you know that my British Daughter and my 4 year old Grandson have returned to Turkey at the weekend to be able to live together with her Turkish Husband and their little Son's Daddy.

It is disgraceful that they have had to return to what is currently an unsafe country all because of Theresa May's pathetic rules for Spouse of Non-EU Citizens.

My Grandson was doing really well at School here in the UK and he was given a Certificate by his Form Teacher last week for his "Fantastic Behaviour and Super Manners", which obviously we are all very proud of for him to achieve this at only 4 years old.  He was born in Turkey and therefore has dual nationality, so he holds a British Passport so that a Visa would not have to be a problem for him to come to the UK with his English Mummy.

Of course, we are all eagerly awaiting the outcome of the Supreme Court Hearing held on 22nd-24th February 2016.  I personally think that the outcome will be that the rules will have to be changed as the Judges didn't appear very happy at some of the current rules, and the situations that the current rules leave families in. They are discriminatory and it's a pity that Theresa May doesn't have the same opinion as many other politicians, as such:

"I have never welcomed the weakening of family ties by politics or pressure" - Nelson Mandela.

"When people's love is divided by law, it is the law that needs to change" - David Cameron..... So why doesn't he do something about it !!!

And, of course, 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.

Everyone has the right to live in safety with their loved ones

The government should work together to ensure families are reunited safely and speedily, especially when it comes to children and other dependent family members. 

Theresa May...(deleted text)…does not care!  "#CrueltyMcCruelFace" !!!

Kind regards,


Mrs Sue XXXX “

Thursday, 21 April 2016

High Court challenge of the ADR rules

UPDATE: Approved judgment is now available here.  Reading it I realise in some parts my hearing was a little selective, and so minor edits have been made to the below to reflect the content of the judgment where my memory doesn't quite square with reality.
__

As many of you will know, BritCits took everyone’s favourite politician to court over the Adult Dependant Relative part of the family immigration rules in force since 9th July 2012.  This was a two day hearing on Tuesday 19th April and Wednesday 20th April at the High Court, in front of Mr Justice Mitting.

We lost the case, but it's not as bad as it sounds. I know, I know.  Mine was the same reaction when the lawyers were reassuring me that the loss was in the best way possible.  Like me, you'd probably have taken a win instead, albeit in the worst way possible.  But we play the cards we are dealt and I think the lawyers are not wrong.  You'll see why below. 

Thank you to all those who attended any part of the hearing - your taking the time out, including annual leave, to be at the hearing helps reinforce the message even to the judge that there are people around who care about these rules, that we have family members we want to be with.  

Note, I’m not a lawyer and combined with a reasonably short concentration span is huge interest in this issue, so the below may well have some errors, will definitely miss out on quite a bit that was discussed, either because the arguments were beyond me or because it was so gripping I was too involved in the hearing to take notes.

The judge did not appear to have any issue with the claimant (us) being an NGO as opposed to a family refused an ADR visa, despite attempts by the HO to sway the judge - he appreciated the detrimental impact of an ADR refusal on even visit visas.
  
Those who spoke at the hearing:
NL – Nathalie Lieven QC (our lawyer) – Landmark Chambers
NS – Neil Sheldon (HO’s lawyer)

Our immense gratitude to Nathalie, and also to Sonal Ghelani and Daniel Rourke, of Migrants' Law Project, and Duran Seddon of Garden Court Chambers.

What's the issue?

Before 9th July 2012, British citizens who wished to sponsor a parent over the age of 65, would have to show the parent was financially dependent on them, and that the sponsor had the means to look after and accommodate their parent, without recourse to public funds.  For elderly parents who were wealthy, and thus not dependent on their British children, there was scope for them to move to the UK as Retired People of Independent Means.  This route too had been closed off.

The only condition earlier, was financial; families were allowed to be together as long as they were not going to be a strain on the taxpayer.  Fair enough.

However, since 9th July 2012 the HO deems that only those who have trouble bathing, dressing or cooking for themselves will be allowed into the UK, and even then only if, the British sponsor can afford to look after them in the UK, but they and their elderly parent cannot obtain care in the parent’s home country, even with the help of any social care, either because it is not available or unaffordable.  

Given most countries will have a cost of living lower than the UK, or those where it is comparable are likely to have social care, I still think the chance of satisfying the criteria is nigh on impossible.  It is ironic given that in the hearing the HO’s entire justification for these rules boiled down to saving the NHS money, they only allow in people who are guaranteed to need a huge amount of medical and social care assistance!

The hearing

Started promptly at 10:30 am on the first day, and at the judge’s request, at 10am the next.  

No anonymity order was made and it was agreed we would rely on the judge's discretion to not divulge personal details of families in the judgment.   There were three grounds that we had put forward as to the illegality of the ADR rules.

1) Immigration Act 1971 requires there 'shall be provision' for dependants.  The rules as they are effectively a ban - and the judge did quote former MP, Sarah Teather who referred to the rules as a 'ban masquerading as a rule' and the APPG on migration report, which said the rules for ADR were 'all but closed'.

Judge seemed very interested in the background behind the IA 1971, including the white paper...he had only been able to locate one from 1965, but nothing more recent than that.  This no doubt made for a busy evening for paralegals in the barrister’s chambers.  The judge did ask where the line should be drawn – for some dependants may mean dependent servants in the country of origin, as the IA doesn’t specify the nature of the dependants.

2) Manshoora Begum – this was a case where it was found unlawful to have rules that discriminated against those living in countries with a lower cost of living than the UK.  One of our arguments was that dependency between parents and children (albeit they are adults now) is beyond financial, it was also social and emotional.  The judge pointed out however that even the pre-2012 rules required financial dependency.

3) Article 8 – the right to private and family life.

The desire to live with and look after elderly relatives.


Judge said he had read all the witness statements, including those from three leading law firms who stated they advised their clients against making an ADR application because it was clear the rules could not be met and that from families; including one from a British citizen living in exile as moving to the UK would mean not being able to sponsor elderly relatives, another a British doctor in the UK whose wife is of English descent, with no ties to the country her in-laws live in, for whom thus relocating abroad is not feasible. 

Justice Mitting seemed keen to explore the drop in grants from around 2000-3000 before the rule change, to 70 (a provisional figure – HO just doesn’t know) in 2014, using the term ‘de minimis’. Despite our asking the HO, we do not have a breakdown of the grants by whether granted within the rules or outside, and by ECO, ECM or tribunal.

Our lawyer pointed out that the sponsors were all law-abiding and skilled citizens – exactly the kind UK would want to attract and retain, and that many would not have moved to the UK had they been aware of rules such as this.  The judge clarified that surely this wasn’t a legitimate expectations challenge, given the immigration rules are subject to change and NL agreed with that, but said it was ‘familial expectation’ as ADR were an integral part of family life.  Also mentioned was our being told by MPs such as Jeremy Hunt that we should learn from Asian cultures in looking after elderly – that the government sets out standards it wants to encourage, yet effectively bars people from doing so.

We cited BMA evidence that over 25% of doctors received their qualifications from outside the EEA and that there was nothing to show the HO had considered lesser alternatives – like private health insurance, a bond or even a minimum income requirement, as was applied to spouses.

The HO response here really peeved me, because they said a MIR would have been contested because of the discrimination against women, those living in certain regions and the less well-off.  How therefore could they justify this for British citizens with foreign spouses, or minor British children with a foreign parent?!  The very same MAC report relied on by the HO for the imposition of an income requirement as per the #MMcase also mentioned an income threshold (much higher than £18600) for ADR.  

It was mentioned that PHI may be quite expensive, however I don’t think any explanation was provided as to why the HO didn’t opt for a bond which could be drawn upon were NHS to be used. 

NS said the rules had been preceded by an extensive consultation, and that the overarching theme of change was to stop abuse and reduce the burden on taxpayers.  He picked and chose a couple of questions from the consultation document to try and support the changes (though I don’t think even these really helped), ignoring the many other questions which made it obvious that the response for the most part was not in support of changes as made.

When the judge mentioned the objective was to remove the routine expectation of settlement for ADR once they reach 65, NS seemed to say no that wasn’t the objective, although the judge did not accept this, citing what he had read in some HO documents, and also mentioning this objective in the judgment.

Moving on to the Policy and Equality Statement, and Statement of Intent, NS said the rules are Article 8 compliant and families can always appeal.  The judge called that a ‘hopeless argument’ and I think said that cannot justify the rules by saying can circumvent it.  NS however said there was no single case in Strasbourg where the ECHR had held that refusal to permit an ADR breached Article 8.

NS said that it was only the success in Quila that created hopes for the English Language Test (Bibi), the MIR (MM case) and now ADR, to which the judge said well it was really because the rules were much more restrictive.

The costs justification fell apart completely, and NS had to concede following some manual calculations undertaken by the judge that the Impact Assessment was flawed, and the assumptions underlying it not realistic.  The judge said the rules saving the UK money did not mean they were proportionate if another less intrusive method could have been adopted.

The first day was very strong for families, whereas the second day there was just too much of the judge nodding along to arguments put forward by NS.  I suspect Justice Mitting had already made up his mind by then on the case, and how high he felt he had authority to go.

The judgment

It was expected that the judgment would be a few months down the line, maybe even after the Supreme Court judgment in Bibi and MM. 

However, when on the second day just before lunch time NL at the end of her submissions asked whether she could respond to some new evidence submitted by NS just that morning within the next 24 hours, the judge said no.  He said he would in his judgment only consider what had been presented at the hearing. 

It became clear why, when he announced he was going to hand down the judgment at 3:30pm that very day!  An ex-tempore judgment which led to a number of jaws dropping. 

The delivery of the judgment took nearly an hour, starting off with the judge quoting from s1(4) of IA 1971, setting out what the pre July 2012 rules were and what the new ones are.  So we were kept in suspense, although when the judge started saying some things in our favour, I knew there was going to be a ‘however’.  L

Justice Mitting mentioned the figures: In the year 2010-11, 2325 ADR visas were granted (figure from 13 June 2011 PES, though figures in the Impact Assessment were slightly different), dropping to 70 in 2014, of which 37 were granted on application and 33 on review or appeal.

The new rules were subject to a negative resolution procedure (something Labour didn’t take up when they should have done) and there was no dissent in the House of Lords. è here I guess supporting the HO claim that the rules did go through proper parliamentary procedure.

Although the justifications behind the rules was presented as stopping abuse, promoting integration and reducing the burden on taxpayers, the judge quoted from Clive Peckover’s statement on behalf of the HO which indicated primary consideration was given to the impact of the new rules on the taxpayer and NHS in particular - if the rules resulted in a reduction in net migration then this was welcome, though not the primary objective. (Pah!)

The table of savings in the impact assessment was once again mentioned with the judge saying he was ‘baffled by the economics’ behind the HO analysis, which indicated a net saving of £10m over ten years, though with a drop of 97% the saving would be higher, even allowing for the fall in fee revenue.  However, no exercise was undertaken by the HO to value the loss to the UK from the departure of British citizens leaving the country in order to live with their ADR.

The judge commented on the consistent evidence from three reputable lawyers and the APPG report, that the ADR route was ‘all but closed’, and that if the UKBA figures were right, this meant that applications now were 23% of that before the change, and grants only 3%.

On our Ground 1, the judge considered what aims of the statute were being pursued.  He quoted Lord Dyson and said that parliament imposes no obligation on the SoS to allow in everyone; she can pick and choose, even if this means limiting the category of dependants to a sub-category.  I didn’t quite get this because he also quoted from instructions issued to caseworkers in 1970 which provided for admission of widowed parents at any age, and elderly parents above 65 where those involved were Commonwealth citizens, or the same for ‘Aliens’ but with the age reduced to 60.  No one could explain why the difference, especially with aliens apparently being treated more generously.

Judge declared ‘the challenge on the ultra-vires/Padfield challenge fails’.  

Moving on to the other two grounds; he said there is a common law duty on the SoS to not accommodate discrimination e.g. Manshoora Begum.  He said the rules as they now are ‘exceptionally difficult but not impossible’.  However, quoted from Huang in saying ‘humans are social animals...’

He said while it was not necessary to set out the details from witness statements given it was personal info being dealt with discretion, the statements were taken into account in his judgment.

He agreed that the new rules were ‘certain to interfere with the family life’ of the frail and elderly parents, as well as a significant number of British citizen sponsors, and their spouses and children in the UK. How?

·      Ability of the ADR to interact with the sponsors - children, grandchildren, and vice-versa
·      The right of the sponsor and family to provide physical and emotional support to the ADR, and for the ADR to receive this from family, not strangers

By limiting the leave to only those who need personal care, family life was being interfered with for elderly who are fit.  He went on to say that it was unsurprising in the three First Tier Tribunal cases shared with him, the judge had concluded family life did exist and that a refusal would interfere in a significant way.  In Justice Mitting’s view, these conclusions were likely to be replicated in many cases.

The question thus was, under Article 8 is this interference proportionate?

He applied the proportionality test, asking whether a fair balance had been achieved, including
  1. Was the objective sufficiently important to justify interference
  2. Were the rules rationally connected to the objective
  3. Were lesser alternatives available to achieve the same objective


Lord Neuberger from Bibi (2015) was quoted and Justice Mitting stated that the ‘ADR rule is not reasonable to impose’, because
  •  It has had a much heavier impact on families than was suggested to Parliament.  Theresa May did not say it would lead to a 97% drop in ADR grants!
  • If a financial measure was adopted for savings, HO failed to take account of the loss from sponsors leaving the UK.
  • Alternative methods to reduce the burden on taxpayers, such as private health insurance or a bond (as is the case in other s38 cases – I have no idea what this is) were not considered.


Therefore, the judge said Free of authority, therefore, I would not have hesitated to consider the lawfulness on the ground of proportionality of the rule and, if I had found it to be disproportionate and so unlawful, to declare it so.  However, I believe that I am bound by authority to do otherwise.’  (I was totally like whaaaaat, no you’re not bound, you're not bound!)

He referred to something Justice Aikens said in the #MMcase at the Court of Appeal, and paragraph 69 of Bibi:

“ 69. For the reasons which I discuss below, I think that there may be a number of cases in which the operation of the Rule in terms of the current guidance will not strike a fair balance. But there may also be many cases in which it will. The court would not entitled to strike down the Rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases: R (MM (Lebanon)) v Secretary of State for the Home Department [2015] 1 WLR 1073, paras 133 and 134 per Aikens LJ. As a result, the appellants fail to show that the rule itself is an unjustifiable interference with article 8 rights.”

The judge went on to say something about how he could get around this, but that it was not for a High Court judge to get around Court of Appeal...and so the ‘Article 8 challenge too fails….claim dismissed’. And the hearts of all but four people (HO legal team) in that courtroom broke.

However, what followed was more positive. We were immediately given permission to appeal nad when our lawyer stood up to discuss the costs BritCits must pay the Home Office, the judge interrupted to say ‘but you will want a stay on the costs order pending the appeal’. 

Normally to appeal my understanding is that you must first obtain permission, which requires oral or written submissions– however the judge granted us permission without requiring any such submissions needed.

So why do I think this judgment, though not in our favour isn’t all that bad?

  • We have already been given permission to appeal by the same judge who ruled against us – he himself sees merit in the case going further. 
  • If the judge felt he was not authorised to deem the rules unlawful, better he tell us straight away than months down the line.  While perhaps he could have waited for the Supreme Court judgment which would overrule the Court of Appeal judgment he had cited feeling unable to go against, what would that have achieved? Even if the SC judgment may have worked in our favour and allowed Justice Mitting to deem the rules unlawful, Home Office would have appealed further anyway and we’d just be delaying the whole process by another a few months.
  • My understanding is that Justice Mitting is known for being more conservative than liberal - so if a conservative judge agrees the rules are not proportional, that may well carry more weight at the appeal.  Yes a conservative judge ruling in our favour would carry even more weight, but, I think the proportionality comments he made are very helpful.
  • This judgment, once publicly available, should help families whose applications are at FtT, because reference can be made to a High Court judge questioning the proportionality of the rules