"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.

Monday, 27 March 2017

More FOI: Serendipity

Author : Steve

Further to the post below, the Home Office response to the FOI contains a very useful link to tables containing a lot of data on numbers of visas processed/refused over a number of years. Now, while I don't think you can extrapolate data specifically for family partner visas on individual countries from those links, you can use them to identify a general trend over time. (The tables contain general data for countries, and for partner visas, but not both together, which is the area of my interest; hence an FOI request is required for this).

In particular, Table vi_01_q allows you to pull off data by category, for example family partner, per quarter. The data for recent years is tabulated below.

The total numbers (all nationalities) for 2016 are : 10958 family partner refusals / 37569 total = 29.2% overall. This gives us a baseline to compare with the percentages of visas refused by country in this post.

These are the total numbers of applications for partner visas since 2011, per quarter:

2011q1 7,110
2011q2 10,067
2011q3 9,676
2011q4 9,340
2012q1 11,409
2012q2 11,797
2012q3 10,639 (new rules are introduced about now)
2012q4 5,885 (big drop - the impact of the new rules is felt!)
2013q1 7,025
2013q2 8,289
2013q3 9,002 (but we start to see the number of applications recovering here)
2013q4 8,066
2014q1 7,354
2014q2 7,909
2014q3 8,378
2014q4 8,287
2015q1 9,162
2015q2 10,270
2015q3 9,643
2015q4 9,649
2016q1 8,776
2016q2 9,574
2016q3 9,366
2016q4 9,853

... while the numbers of applications never quite reach pre-2012 levels, they get close.

Also - from the same set of tables - consider the percentage of visas refused over the same time period :

2011q1 18%
2011q2 13%
2011q3 16%
2011q4 15%
2012q1 15%
2012q2 15%
2012q3 22%
2012q4 42% (big jump in refusals after the 2012 rules come in!)
2013q1 33% (but then the % of refusals starts to drop...)
2013q2 30%
2013q3 18% (... back to pre-2012 levels!)
2013q4 20%
2014q1 15%
2014q2 15%
2014q3 40% (why so many refusals here - maybe the impact of the Immigration Act 2014?)
2014q4 32%
2015q1 27%
2015q2 24%
2015q3 29%
2015q4 27%
2016q1 31% (this looks like a bad quarter as well)
2016q2 28%
2016q3 26%
2016q4 26%

So - to draw a tentative conclusion - the 2012 rule change had a big short term impact on family visas, but after several quarters people adjusted and the numbers of visas granted are (almost) back to the same levels.

Which was sort of predicted at the time the rules came in... people adjust, as they have to, because after food and shelter, family is the most important think in most people's lives, regardless of what the government says. People adapt.

Maybe you can also see the impact of groups and campaigns like BritCits, Family Immigration Alliance, Love Letters to the Home Office, and I Love My Foreign Spouse here as people self-organise, share information about news and tactics, and build each other and the sum of knowledge up - over time; even if, like bodhisattvas, they continue to share their experience for the good of others after succeeding in their own fight.

And of course, it is a fact that as the world continues to globalise, historic forces continue to interconnect the world politically, economically, and inter-personally. As I've said before on this blog, practically since its inception, the rules were always doomed to fail in their intention because love finds a way. Even after the first refusal. One way or the other.


Juggling on the Berlin Wall
Total number of spouse visas processed and refused by selected nationalities, 2016

Author : Steve

A while back I made this Freedom of Information request in response to an online discussion, as I was curious about numbers of rates of refusals for a balanced selection of different nationalities, including some of the most common countries for foreign spouses. The text of the request is here :

I would like to request the following information under the Freedom of Information Act.

1. Total number of spouse visa applications processed for the following nationalities from January 1 2016 to 31 December 2016 : 
Argentina, Australia, Brazil, Canada, China, Egypt, India, Israel, Japan, Mexico, Nigeria, Pakistan, Russia, South Africa, Thailand, Turkey, United States

2. Total number of refusals for spouse visa applications processed for the following nationalities from January 1 2016 to 31 December 2016 : 
Argentina, Australia, Brazil, Canada, China, Egypt, India, Israel, Japan, Mexico, Nigeria, Pakistan, Russia, South Africa, Thailand, Turkey, United States

This was for a whole year, to even out anomalies such as local holidays. The response is in (see link above) and includes data per quarter, with information about applications made, processed, refused, withdrawn, and lapsed.

The table below shows the numbers of refusals divided by the number of applications over the whole year, followed by a percentage of refusals/applications. Note this comes with a few caveats, e.g. withdrawals and lapses are included in the total so don't assume that every visa not refused was processed; however the numbers for withdrawals and lapses are very low and wouldn't make much difference to the overall figures even if excluded. Note also that an application made in 2015 or 2016 may not be processed until 2016 or 2017.

These are included without comment as there is likely more than one reason for the differences. However the results are enlightening and seem to match the lived experience of both BritCits members and members of other online support groups and forums.

Country Refused/Total = Percentage (2016)
Japan 17/272 = 6.3%
Argentina 4/42 = 9.6%
Australia 93/881 = 10.6%
SouthAfrica 99/834 = 11.9%
Russia 70/582 = 12.0%
Canada 73/517 = 14.1%
USA 371/2544 = 14.6%
Brazil 76/480 = 15.8%
Mexico 28/175 = 16.0%
China 222/1071 = 20.7%
Israel 19/87 = 21.8%
Thailand 242/1094 = 22.1%
Turkey 176/787 = 22.4%
Egypt 102/338 = 30.2%
India 1236/3888 = 31.8%
Pakistan 3032/7472 = 40.6%
Nigeria 555/1131 = 49.1%

Note to the reader : You can make your own FOI request at whatdotheyknow.com, and I think an FOI request is something everybody should do at least once in their lives.

Wednesday, 1 March 2017

BRITCITS OVERVIEW OF MMCASE SUPREME COURT JUDGMENT


BRITCITS OVERVIEW OF JUDGMENT – 22 FEBRUARY 2017
MM AND ORS vs SECRETARY OF STATE, SUPREME COURT

The Court of Appeal making families wait for four months felt tortuous.  It seemed like a gift though when the Supreme Court took a full year, handing down its judgment on the one year anniversary of the hearing.  There had been much hope pinned to this, that these judges would see what the ones in the preceding court hadn’t, and would undo the injustice done to families by our paid representatives. Perhaps because it is the last hope – unless this case goes to the ECHR, which given the case law references may be unlikely.

The CoA had shocked us (case overview here) and Supreme Court wasn’t to be left behind.  However, the judgment was also not as bad as the headlines suggested, nor as even I initially though.  It wasn’t as great as it should have been, but there are some positives.

In summary, the minimum income requirement, at £18,600 is retained.  But the Home Office has been told to amend the rules and guidance to ensure best interest of children is the primary consideration and to consider how alternative means of reliable funding can be taken into account.

The judgment

Looking through the judgment in some detail:

Introduction

In the same paragraph [2] the judges look at both, the median and mean earnings, which isn’t consistent. The judges acknowledge there is a disparity in earnings between men and women, and across the regions – yet seem to accept the inherent discrimination.  They also reflect that 301 out of 422 listed occupations – ‘many providing essential public services’ – have average annual earnings below £18,600, yet don’t take into account that these rules therefore do not serve public interest by effectively forcing those providing these essential public services out of the UK, or at least, out of their occupation.  There is no acknowledgement that there may not be enough jobs paying the elusive £18,600 outside London, and that being forced to move to a region where such salaries are the norm actually leaves the family in a worse financial position.

The MIR and the background to its introduction

We are reminded that even pre July 2012, sponsors would need to show they were able to maintain and accommodate themselves and any dependants ‘adequately in the UK without resource to public funds’ such as social housing and welfare.  NHS, education and social care are not classed as public funds for this purpose.  However, this was considered problematic because of inconsistencies in allowing for current and prospective income of sponsor and applicant, third party support and housing costs. Additionally it did not prevent a burden on the taxpayer once the applicant had indefinite leave to remain, when they’d be eligible for full access to welfare benefits.

The above are given as the reasons for the MIR.  I have so many issues with this. 

1.    The rules even now allow for current income of the sponsor; they also allow for prospective income of sponsors who earn over £18,600 overseas and have a confirmed job offer in the UK paying over that threshold. 

2.    The judgment deems HO does consider alternative means of funding – not clear what, but this may mean third party support. 

3.    Even now, spouses can claim full benefits once they get ILR.

So taking the combination of the July 2012 rules and the judgment, caseworkers should surely be faced with the same problems the HO claim they did pre July 2012.  What is the point then?

With regards to public funds – I cannot see in the judgment any mention of spouses paying an Immigration Health Surcharge, or the taxes and National Insurance they pay from their earnings which finds its way to the NHS.

There is much in the judgment about the Migration Advisory Report that came up with the £18,600, including that this was the total household income that disqualified even the sponsor from becoming ‘a burden on the state’. 

The aims of the MIR it is claimed by the HO are to

-       Ensure “those who choose to establish their family life in the UK….should have the financial wherewithal to be able to support themselves and their partner without being a burden on the taxpayer.  Moreover the sponsor should bear the financial responsibility of ensuring the migrant is well enough supported to be able to integrate and play a full part in British society”. 
-       Reduce net migration
-       Restore public confidence in the immigration system

The first point above makes it clear that the HO intends for British citizen to pay a penalty for falling in love with a foreigner, whereby they must give up their own right to claim benefits, to have their partner with them.  The second point unfortunately works in the HO’s favour, as part of their strategy.  The third point – well, how can public confidence in the immigration system be restored when since 2010 the Home Office spend on immigration fees has seen a steep rise, coupled with a staggering percentage of refusals being overturned on review or appeal.

HO anticipated these rules would reduce family visas by about 16,100 per year, and net migration by 9,000.  This much havoc wreaked on families for this you ask.  Indeed.

The new Rules and Guidance

It seems part of what has fed into the judgment is that the new rules were unanimously approved by a positive resolution of the House of Commons, and the motion of regret in the House of Lords was withdrawn.

Deep breath.  First of all, when the new rules were approved, it had not been made clear what the rules were – they had they had not been run through in detail in parliament, and they were rushed in, with less than one month’s notice.  The Joint Committee of Human Rights also said that the rules had not been through the required level of parliamentary scrutiny.  Once there was more clarity on what the rules actually meant, both Houses of Parliament voiced dismay at what the rules were doing to families.  Evidence was submitted by the MM lawyers on these points.  Additionally, withdrawal of the motion of regret by peers is convention and very standard behaviour in the HoL. It is not a condoning of the rules.  Although I didn’t know this, I found out by speaking to the wonderful Lord Avebury and Baroness Hamwee.  I cannot imagine the judges are not however aware of this convention.

The judgment then goes into the background of the actual cases brought before them. I am seriously peeved by the repeated mention of the heritage of the British citizens who are looking to sponsor a foreign partner.  Why is it relevant when the judgment gives no weight to the disparity of average earnings amongst different ethnic groups?  It just serves to insinuate there is a two-tier nationality.  I also wish the cases had been of a sponsor who was a British citizen by birth, even going back several generations and unable to sponsor their partner from America or Australia.  It shouldn’t make a difference, but I can’t help but wonder if it would have.

The case law

There is case law indicating that there is ‘no general obligation to respect a married couple’s choice of country to live in…’ and this is used by the judges to go further and say ‘no general obligation…to authorise family reunification.  It will depend upon the particular circumstances of the persons concerned and the general interest.  Factors to be taken into account are the extent to which family life would effectively be ruptured; the extent of ties in the host country; whether there are “insurmountable obstacles”’….and whether when family life was created it was known the immigration status of the foreign partner would be precarious. 

There are references to case law where the foreign spouse had committed an offence in the UK – not relevant for the most part.  Importantly though the judges reference case law that says best interest of children must be taken into account (s55), even more so in the UK because we are a party to the UN Convention on the Rights of the Child.

It seems the judges may have been placated by
-       HO saying s55 would be adhered to not just for kids in the UK, but even for those outside the UK.
-       Appendix FM purporting to reflect article 8 and s55
-       Explanatory Memorandum stating the purpose of the new rules is to set requirements which correctly balance right to private and family life with public interest in safeguarding the economic well-being of the UK by controlling immigration, and that best interest of kids has been incorporated into the rules. 

But just because the label says something, it doesn’t mean that is what is in the tin…and to some extent the judges do see that.

Challenging the rules under article 8

The Quila case is interesting – it restricted the admission of foreign spouses only where both parties were over 21, in an attempt the HO said to deter forced marriages.  Supreme Court in this case said the number of unforced marries which such an age restriction obstructed vastly exceeds the number of forced marriages it deters….a sledgehammer to crack a nut approach when the HO didn’t identify the size of the nut i.e. the problem.  And this case thus went against the government.

I cannot therefore understand why the same reasoning is not applied to this case – the rules cause more damage to law-abiding families who are not a burden on the taxpayer than deter those who potentially would be.  Well, the HO certainly didn’t prove these rules help more than they hinder.

However, the court was not convinced that these rules are inherently unjustified in all or nearly all cases and hence the MIR was not ruled unlawful on article 8 grounds.  Furthermore, case law indicates that the rules themselves do not have to be article 8 compliant –the refusal of a visa may however breach article 8 in individual cases.  Confused? Let me try and explain.  The rules do not have to allow for article 8 rights, but the decision to grant or refuse a visa in an individual case must take into account article 8– which can be done through the combination of the rules, guidance, and tribunals.  Additionally, the Home Secretary / Minister for Immigration has discretion in granting entry clearance outside of the rules (although there is no evidence to indicate this power is used).

So, it’s okay for the HO to refuse a visa on the basis of rules which do not take into account article 8 rights, because families will be able to go to tribunal to invoke article 8 rights. 

“Thus whatever the defects there may be in the initial decision, it is the duty of the tribunal to ensure that the ultimate disposal of the application is consistent with the Convention.” [59]

That going to tribunal is not an option for all, because it costs a lot of money and means article 8 rights are not respected for even those who do go to tribunal for the years any legal proceedings take, is not addressed.

Had the Home Office not changed their stance to accept that the rules are not all-encompassing when it comes to article 8 rights, the judgment may have gone against them.  Interestingly, the HO still aims for the rules alone to lead to decisions which are compliant with article 8.  The judges suggest this may not be acceptable, but that is to do with the legality of the instructions, not the rules – and it is the latter which they are being asked to make a judgment on, I guess they are implying.

Acceptability of the MIR

“MIR has caused, and will continue to cause, significant hardship to many thousands of couples, who have good reasons for wanting to make their lives together in this country, and to their children.” [80]

Here the judges acknowledge that the type of families who the MIR will have a harsh effect on also includes Brits who formed relationships before the MIR was introduced, and now find themselves unable to return home.  However, they go on to say that just because a rule causes hardship to so many [suggesting to me they are aware of the anguish caused by these rules], including those who are in no way to blame for the situation which they now find themselves in, does not mean that it is unlawful – despite also saying that while the MIR doesn’t prevent a couple marrying it does prevent them from enjoying family life together. 

Despite that ‘MIR may constitute a permanent impediment to many couples’, it is part of a strategy to reduce net migration and ensure the couple do not have recourse to welfare benefits and can integrate.  And these aims are sufficient to justify the interference with, and the lack of respect for, the right to a family life.  Joy.

Worse, the MAC report is practically praised.  And I don’t know if I am being dim here, but the MAC report recommended an income threshold of £18,600 as the household income…a two person income. Why then impose this requirement on one person alone?!

So the judges rule that the principle of the MIR is lawful.  Which is fine - it’s the level which has been an issue, so much higher than minimum wage. But I’m not sure that is covered by this judgment.  Is there anything to stop the HO from increasing the MIR?

Treatment of children

The judges find that best interest of children is not treated as a primary consideration.  Instead, current practice is that the foreign parent is only where there presence is the only means of alleviating the hardship caused to the child e.g. for a major medical procedure or prevention of abandonment.  The judges state that they have no doubt this approach is defective, deeming both the rules and the guidance as unlawful.

Treatment of alternative sources of funding

MAC report is once again cited, as it mentioned including third party support and the future income of the spouse, given it is total household income which determines eligibility of even the British citizen to welfare.  That the Home Office did not take up MAC’s offer to consider how the £18,600 could be adjusted is a huge boon for families, as there may be pressure on the government to now do so.  I am however bemused at the reference to third party support in the form of accommodation being taken into account though, as the MIR is not reduced to reflect 'free' accommodation. 

The court re-iterates what has been said in the House of Lords – that third party support may be more dependable than employment. 

However, not allowing for alternative means of funding like third party support in the rules is acceptable, as this makes for rules which are simpler and easier to apply.  Outside of the rules though is another matter as the Human Rights Act requires looking at the circumstances underlying each application.  But the Supreme Court deems that judges at tribunals can assess the reliability of alternative sources of funding, even where caseworkers do not. 

Supreme Court says the guidance should make clear that a broader approach may be required to assess whether the government’s objectives of ensuring no burden on taxpayer and integration can be met by other reliable sources of funds.  Although, whatever the rules and guidance say on this, nothing precludes the tribunal from allowing for them. 

What constitutes reliable is a matter for the government to decide, and whether they do this through the rules or guidance is up to the government.

What now?

The Home Office will make written submissions to the Supreme Court for the changes being proposed as a result of this judgment, and the Court will then consider whether a further hearing is necessary.  I’m told by a member of the legal team that the Home Office has 56 days to action this.

We know the rules and guidance must be amended to take into account the best interest of children. 

Amendments will need to be made to ensure alternative means of funding where the source is reliable as deemed by the Home Office are taken into account, though how this is done, and what constitutes reliable, is up to the government. 

The MIR remains, and remains at £18,600+.  Bummer.  Can the government even increase this? If they do so, I suspect it will not be part of their submissions!  However, it may be tough for the to increase the requirement to a threshold which is higher than that which would disqualify a British citizen from claiming income-related benefits, given their rationale for the threshold.

I am concerned that whatever positive changes the Home Office make on the back of this judgment, caseworkers will continue to apply them unlawfully. I have serious reservations about so many families still being forced to rely on tribunals to right wrongs, when the tribunal path is neither quick nor cheap.  I am worried about the families who will still not be able to be together because of the rules, couples who are prevented from having children because they are living in different countries, and indeed, some who accelerate having kids just to be together in the same country. 

It may be that significant change will now only come from parliament rather than courts, and thus I urge all of you to make the most of media opportunities to voice how damaging these rules are, write to your local newspapers, lobby your MP, name and shame them if they do not represent you.  With each day, the number of British citizens caught up in these rules will only increase as more and more fall in love with someone without factoring in the colour of their passports.

Tuesday, 28 February 2017

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  
   
      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.