How Do I Start A Human Rights Legal Case Against The Uk Spouse Visa System.

[AngryParent]

Of course you do not need to have applied for a spouse visa; you are, I assume, a British citizen. Whether or not you wife needs to have done is the question.

From that document

A public authority will not be considered to have acted incompatibly if, as a result of an Act of Parliament, they could not have acted differently.

Does this mean the UKBA would not be able to have acted differently due to the regulations they follow being set by Parliament?

I don't know. Hopefully the JCWI will be able to clarify this.

It would be of great interest to all, I'm sure, were you to post the reply you receive from the JCWI; deleting your personal details, of course.

Until then, in the absence of a confirmed legal opinion, I feel that further comment is superfluous.

Guess what?

I just called them as this is important and was told in very simple terms:

That they are not a human rights service and the British government does not care about human rights and was also told that they agree most people will suffer and that they cannot help - contact liberty was the best they could offer.

So, back to the forum:

Help/advice anyone - preferably OTHERS?

[Mario2008]

The government can argue that an applicant doesn't fall under the convention as he/she is not in Europe. That might or might not stand in some cases.

A UK national can argue that his rights to family live (the right to form a family are violated) if his foreign spouse is denied entry or there are restrictions placed upon it. That is normally how these things are challenged in court (national and European).

Any challenges go first through the national courts and not until there is a final judgement from the highest judge that is competent in the case can a challenge be made at the European Court of Human Rights.

That is a lengthy national process and only a few percent of all cases submitted to the ECHR court are accepted.

[AngryParent]

The government can argue that an applicant doesn't fall under the convention as he/she is not in Europe. That might or might not stand in some cases.

A UK national can argue that his rights to family live (the right to form a family are violated) if his foreign spouse is denied entry or there are restrictions placed upon it. That is normally how these things are challenged in court (national and European).

Any challenges go first through the national courts and not until there is a final judgement from the highest judge that is competent in the case can a challenge be made at the European Court of Human Rights.

That is a lengthy national process and only a few percent of all cases submitted to the ECHR court are accepted.

Thanks!

I did know that it is lengthy etc.

So far from the document I attached (and memory from somewhere), it appears that my family/I are able to start a case. But that doc does not really say how to do it.

Right now I want to bring this to UK courts as a hr matter and as cheap as possible e.g. prepare all the docs myself and even represent myself in court if need be (unless there are agencies that will act on my behalf - but I called the one in this thread and they cannot help and liberty will probably be a waste of time as they probably have better things to do).

How to do this?

[simple1]

The government can argue that an applicant doesn't fall under the convention as he/she is not in Europe. That might or might not stand in some cases.

A UK national can argue that his rights to family live (the right to form a family are violated) if his foreign spouse is denied entry or there are restrictions placed upon it. That is normally how these things are challenged in court (national and European).

Any challenges go first through the national courts and not until there is a final judgement from the highest judge that is competent in the case can a challenge be made at the European Court of Human Rights.

That is a lengthy national process and only a few percent of all cases submitted to the ECHR court are accepted.

Thanks!

I did know that it is lengthy etc.

So far from the document I attached (and memory from somewhere), it appears that my family/I are able to start a case. But that doc does not really say how to do it.

Right now I want to bring this to UK courts as a hr matter and as cheap as possible e.g. prepare all the docs myself and even represent myself in court if need be (unless there are agencies that will act on my behalf - but I called the one in this thread and they cannot help and liberty will probably be a waste of time as they probably have better things to do).

How to do this?

Why not approach one of the Law Schools that specialise in Human Rights law to see if a lecturer/student is prepared to assist you; no harm in trying. Unless you are well versed in presenting legal argument the challenge that you wish to take on will not get very far. As difficult as it may be for you, looks like it would take a long time for this issue to be raised in by the European Court of Human Rights. However I have posted a link below that should walk you through the process.

http://www.echr.coe....sked questions/

Edited June 20, 2012 by simple1

[AngryParent]

The government can argue that an applicant doesn't fall under the convention as he/she is not in Europe. That might or might not stand in some cases.

A UK national can argue that his rights to family live (the right to form a family are violated) if his foreign spouse is denied entry or there are restrictions placed upon it. That is normally how these things are challenged in court (national and European).

Any challenges go first through the national courts and not until there is a final judgement from the highest judge that is competent in the case can a challenge be made at the European Court of Human Rights.

That is a lengthy national process and only a few percent of all cases submitted to the ECHR court are accepted.

Thanks!

I did know that it is lengthy etc.

So far from the document I attached (and memory from somewhere), it appears that my family/I are able to start a case. But that doc does not really say how to do it.

Right now I want to bring this to UK courts as a hr matter and as cheap as possible e.g. prepare all the docs myself and even represent myself in court if need be (unless there are agencies that will act on my behalf - but I called the one in this thread and they cannot help and liberty will probably be a waste of time as they probably have better things to do).

How to do this?

Why not approach one of the Law Schools that specialise in Human Rights law to see if a lecturer/student is prepared to assist you; no harm in trying. Unless you are well versed in presenting legal argument the challenge that you wish to take on will not get very far. As difficult as it may be for you, looks like it would take a long time for this issue to be raised in by the European Court of Human Rights. However I have posted a link below that should walk you through the process.

http://www.echr.coe....sked questions/

Thanks for that. That is step 2 i.e. ECHR. I am still at step 1 i.e. UK

[bobrussell]

As suggested above the new policies will have to be challenged in court. Parliament appear to have passed these recommendations unanimously.

Until there is a refusal then there cannot be a case to fight. If you want to be a test case you should apply as normal and wait for refusal. It may be that ECO's will be given discretion (pigs might fly).

Once there is a refusal it goes to appeal and I suspect this is the first stage that human rights may be invoked.

It will do no harm to mention in your original application that you will consider a refusal on grounds of income below £18,600 a breach of your human rights! I would also suggest you produce a cash flow forecast to demonstrate that you can support your partner adequately.

There is a big difference between fighting the government with your partner in the UK compared to fighting for months or years and being separated!

Have you spoken to your MP if you think you are going to be caught up in the rule change? It might be useful to get him or her on your side so my suggestion is that you are nice and polite to him or her rather than get his/her back up.

[simple1]

The government can argue that an applicant doesn't fall under the convention as he/she is not in Europe. That might or might not stand in some cases.

A UK national can argue that his rights to family live (the right to form a family are violated) if his foreign spouse is denied entry or there are restrictions placed upon it. That is normally how these things are challenged in court (national and European).

Any challenges go first through the national courts and not until there is a final judgement from the highest judge that is competent in the case can a challenge be made at the European Court of Human Rights.

That is a lengthy national process and only a few percent of all cases submitted to the ECHR court are accepted.

Thanks!

I did know that it is lengthy etc.

So far from the document I attached (and memory from somewhere), it appears that my family/I are able to start a case. But that doc does not really say how to do it.

Right now I want to bring this to UK courts as a hr matter and as cheap as possible e.g. prepare all the docs myself and even represent myself in court if need be (unless there are agencies that will act on my behalf - but I called the one in this thread and they cannot help and liberty will probably be a waste of time as they probably have better things to do).

How to do this?

Why not approach one of the Law Schools that specialise in Human Rights law to see if a lecturer/student is prepared to assist you; no harm in trying. Unless you are well versed in presenting legal argument the challenge that you wish to take on will not get very far. As difficult as it may be for you, looks like it would take a long time for this issue to be raised in by the European Court of Human Rights. However I have posted a link below that should walk you through the process.

http://www.echr.coe....sked questions/

Thanks for that. That is step 2 i.e. ECHR. I am still at step 1 i.e. UK

Looks like I wasn't clear enough. Highlighted wording above talks to your Step 1

[Seekingasylum]

When the OP comes to submit his appeal he can do so on the grounds the refusal breached his human rights under the EHRA and was also discriminatory in that his right to return to his country has been denied to him in circumstances that would not have occurred if he had chosen to travel to another state within the EU.

These new proposed changes cannot withstand any challenge. As I said in my post in the other thread, all anyone has to do is to travel to an EU member state other than his own with the intention to be economically active there. In such cases he must be allowed to take his wife by EU law together with his family. There is no time limit and no income threshold to the term " economically active " and can constitute self employment in any capacity - operating a window cleaning business or taking a job in CERN, it's all the same. Once the sponsor and his wife + family have established their residence, no matter how short, she can then apply for an EEA family permit to the UK with her Brit husband.

[paully]

I knew my assumption was right!!!

A victim, under the Act, can be defined in the following ways:

• An individual who has been affected or is at risk of being directly affected by something done by a public authority;

http://hmctsformfind...s/ex503-eng.pdf

The above means I do not have to have applied for a spouse visa.

Well, yes, it is very well-established law (considerably pre-dating the Human Rights Act) that an individual affected by the decision of a public authority can challenge it in the High Court by way of what is called a judicial review (JR) procedure. The court has the power to declare the rule (law) void because of unreasonableness or that the minister went beyond his/her powers (ultra vires) in making it, or because it was in conflict with the HRA.

But - a JR is a very technical and complex procedure for which preparation lawyers are very much recommended. Also, there is no legal funding for a JR hearing (except for asylum) and in your case your spouse would have had to have been refused by the relevant government department/ agency - so she would need to have applied for a spouse visa and have been refused one. Not a straightforward matter then.

Edited June 20, 2012 by paully

[AngryParent]

I knew my assumption was right!!!

A victim, under the Act, can be defined in the following ways:

• An individual who has been affected or is at risk of being directly affected by something done by a public authority;

http://hmctsformfind...s/ex503-eng.pdf

The above means I do not have to have applied for a spouse visa.

Well, yes, it is very well-established law (considerably pre-dating the Human Rights Act) that an individual affected by the decision of a public authority can challenge it in the High Court by way of what is called a judicial review (JR) procedure. The court has the power to declare the rule (law) void because of unreasonableness or that the minister went beyond his/her powers (ultra vires) in making it, or because it was in conflict with the HRA.

But - a JR is a very technical and complex procedure for which preparation lawyers are very much recommended. Also, there is no legal funding for a JR hearing (except for asylum) and in your case your spouse would have had to have been refused by the relevant government department/ agency - so she would need to have applied for a spouse visa and have been refused one. Not a straightforward matter then.

I had a quick look at a few docs regarding this judicial review. Although it has much of what I want, I don't think this is the legal option that is in my mind and that I am trying to do - JRs are complex and costly. The human rights option has a built in system for those who are poor, cannot have lawyers etc and would fit my position i.e. it is more common man friendly, from my understanding over the last many years (but no I am not a lawyer). Take a look at the link I added in one of the posts above - what I want to do is either what is in that or something that is very similar.

[bobrussell]

For any human rights claim there has to be a victim and it clearly states you can only bring proceedings under the human rights act if you are a victim. The definition is below:

What is a victim?

A victim, under the Act, can be defined in the following ways:

• An individual who has been affected or is at risk of being directly affected by something done by a public authority;

• An organisation, interest group or trade union, but only if it is itself a victim. There is also nothing to stop these organisations providing assistance, such as legal representation, to a victim;

• A relative of a victim, if the complaint is about the death of the victim;

• An individual or a company whose case could be heard by the European Court of Human Rights in Strasbourg.

As the rules have not even been introduced yet there is little you can do about it at the moment! Without the backing of a human rights lawyer (and funding) it is unlikely to get anywhere.

[elliss]

send info re. your situation to UK newspapers ,

OBSERVER , GUARDIAN, MAIL, etc ,

[KeyserSoze01]

The OP, AngryParent (which somehow seems appropriate) is pissing in the wind. There is a reason there are minimum income requirements imposed to provide a visa to your spouse and children. It is so that when / if you go bust and are flat broke, the g'ment does not have to support a foreigner in your homeland.

You don't have money for an attorney, but want to start a human rights violation case against the UK. Sounds like just another person who doesn't like the rules, so you are going to throw a wobbly and pitch your toys out of the pram. Go home to the UK, get a job that pays you more than the minimum requirements for the spousal visa, then bring your wife over to the UK once you get this sorted. Whinging about it, especially here does nothing to further your cause.

[RAZZELL]

I knew my assumption was right!!!

Here we go again

RAZZ

[Soutpeel]

I knew my assumption was right!!!

Here we go again

RAZZ

Wonder how is Thai citizenship is going, but more importantly has he sued the Thai goverment for human rights violations as well...

[paully]

I don't think this is the legal option that is in my mind and that I am trying to do - JRs are complex and costly. The human rights option has a built in system for those who are poor, cannot have lawyers etc and would fit my position i.e. it is more common man friendly, from my understanding over the last many years

Yes, but judicial reviews can be very effective, and relatively quick - that's the point.

There isn't an option that fits exactly what you are 'trying to do'. Bobrussell is right, even under the HRA you need to be a victim, ie to have actually suffered because of the new rule. It isn't even in effect yet!

Once it is in effect and you have been affected by it, you could contact the European Court of Human Rights by post (contact details are below) and ask it if it will take up the matter and rule against the UK government.

An analogy would be the Portsmouth landlady who successfully wrote a letter to the European Court of Justice (ECJ) to complain about the exorbitant Sky TV charges for live football being against EU competition law - however the ECJ is very different to the ECHR. But there are absolutely no guarantees whatsoever that the ECHR will take up the matter, normally you should use the UK court route first, and it will not be a rapid action.

http://www.echr.coe..../bottom/contact

Edited June 21, 2012 by paully

[Eff1n2ret]

It will be necessary for an application to be refused on income grounds. An appeal will need to follow and fail under the immigration rules. Only then will the human rights lawyers get started!

If I recall correctly, the case against UKBA regarding the English language requirement which was raised by an Indian national was heard in the High Court even though he hadn't gone through the full process of application and appeal - it was argued that it was pointless for him to do so as he had no chance of complying with the requirement.

But I suspect the OP will have to wait until some organisation, publicly- or otherwise-funded, takes up the case. He hasn't a chance of succeeding on his own, and any lawyer may well want up to 10K up front to take on a JR case. He could of course appeal against refusal of entry clearance on Human Rights grounds, but he would not succeed without professional legal representation.

Edited June 21, 2012 by Eff1n2ret

[7by7]

So, even if his wife does not apply and be refused he would still need to exhaust all legal avenues open to him in the UK before the ECHR or ECJ would even consider looking at the case?

[paully]

^ Not the ECJ, 7by7, as this wouldn't be a matter of EU law. I was using that as an analogy.

But he would usually have to exhaust legal avenues in the UK first. It would be extremely unlikely that the ECHR would take up the case otherwise, and his case is hardly 'urgent' in a life-threatening sense.

[AngryParent]

So, even if his wife does not apply and be refused he would still need to exhaust all legal avenues open to him in the UK before the ECHR or ECJ would even consider looking at the case?

Yes. Although, from my memory - exhausting all legal avenues is not what you might imagine e.g. it could be the simple claim case from the document I linked to and then a straight jump to the ECHR. There is no need to go through appeals and higher courts etc.

Something of interest:

"111. In Burden, the ECtHR confirmed that applicants may not be required to pursue their claim in the domestic courts if the only possible remedy is a declaration of incompatibility under the Human Rights Act. As it is for the Government to decide whether or not to amend the legislation which has been declared to be incompatible, and whether to change the law in a way which provides an adequate remedy for the individual applicant, the ECtHR concluded that the declaration of incompatibility cannot be considered an effective remedy for the purposes of the requirement that domestic remedies be exhausted"

http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/128/12807.htm

Edited June 21, 2012 by AngryParent

[AngryParent]

It will be necessary for an application to be refused on income grounds. An appeal will need to follow and fail under the immigration rules. Only then will the human rights lawyers get started!

If I recall correctly, the case against UKBA regarding the English language requirement which was raised by an Indian national was heard in the High Court even though he hadn't gone through the full process of application and appeal - it was argued that it was pointless for him to do so as he had no chance of complying with the requirement.

But I suspect the OP will have to wait until some organisation, publicly- or otherwise-funded, takes up the case. He hasn't a chance of succeeding on his own, and any lawyer may well want up to 10K up front to take on a JR case. He could of course appeal against refusal of entry clearance on Human Rights grounds, but he would not succeed without professional legal representation.

But to be totally honest, we already know the UK HR courts are not that sympathetic. Approaching the UK courts is mainly a procedural requirement for step 2 i.e. ECHR.

Thus, paying anything more than the smallest claim fee to the court is a waste of money and self representation is advisable - unless a knight in shinning armour appears.

Edited June 21, 2012 by AngryParent

[theblether]

It will be necessary for an application to be refused on income grounds. An appeal will need to follow and fail under the immigration rules. Only then will the human rights lawyers get started!

If I recall correctly, the case against UKBA regarding the English language requirement which was raised by an Indian national was heard in the High Court even though he hadn't gone through the full process of application and appeal - it was argued that it was pointless for him to do so as he had no chance of complying with the requirement.

But I suspect the OP will have to wait until some organisation, publicly- or otherwise-funded, takes up the case. He hasn't a chance of succeeding on his own, and any lawyer may well want up to 10K up front to take on a JR case. He could of course appeal against refusal of entry clearance on Human Rights grounds, but he would not succeed without professional legal representation.

But to be totally honest, we already know the UK HR courts are not that sympathetic. Approaching the UK courts is mainly a procedural requirement for step 2 i.e. ECHR.

Thus, paying anything more than the smallest claim fee to the court is a waste of money and self representation is advisable - unless a knight in shinning armour appears.

Prepare to be trolled...........

If you put as much effort into actually qualifying as you do to complaining about the regulations you would earn enough to take 10 families back.

I'll get my coat.

[bangkockney]

OP, give your details to the JCWI. They are looking for people like you as we speak. There's a strong chance they'll launch a pro-brono joint action on behalf of a few plaintiffs who have strong cases, as a test case against the new rules............

As I am sure you know, bangkockney, but others may not; Article 8 is a qualified right. Paragraph 2 saying

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The government have already made it clear that in their opinion, and that of their lawyers one assumes, the proposed changes they are making to family migration, asylum etc. fall under this paragraph and they are prepared to defend this postion all the way up to the highest court necessary. (See Paras 27 to 69 of the statement of intent.)

So, good luck to JCWI and their guinea pigs. I wish them success, but I fear they wont get it.

Indeed 7by7. Which is why it's funny to hear Ms May bang the drum about wider EHR issues - saying the UK should have more choice in matters - when it already does!

If the OP is serious, and given the result of KA and others (reference to the minimum the Govt considers acceptable for a British family to live on) then a judicial review targeting the discriminatory element of having a higher requirement for a foreign spouse relationship could be the way to go.

But really OP needs legal advice and doing it alone I think is foolish. Simply, the OP doesn't have access to a small army of clerks and does not know due process.

[7by7]

As I am sure you know, bangkockney, but others may not; Article 8 is a qualified right............

Indeed 7by7. Which is why it's funny to hear Ms May bang the drum about wider EHR issues - saying the UK should have more choice in matters - when it already does!

Propaganda for the masses, I suspect. Many people in the UK are concerned, rightly or wrongly, about what they see as high immigration and interference from the European courts; a feeling stoked up by the right wing press. Governments tend to do what's popular rather than what's right, so here's Ms May shouting about how the government is doing something about both.

What those of us who are against some or all of these proposals need to realise is that the vast majority of the UK population, of whatever ethnicity, either don't care or if they do, think the changes don't go far enough!

If the OP is serious...........

Given his posting history and attitude to those who disagree with him; a big if.

But really OP needs legal advice and doing it alone I think is foolish. Simply, the OP doesn't have access to a small army of clerks and does not know due process

Indeed, but as already seen in this and his past topics, he will come up with links and quotes to prove that he is right and everyone else wrong.

As previously, he will ignore the fact that the documents he is quoting are out of date and been superseded or he will cherry pick parts which support his argument and ignore those that don't.

I strongly suspect that, like his stated desire to take out Thai citizenship and his stated desire to move to an EEA state to by-pass the UK settlement rules, that this is all hot air and, even if he has a Thai family, he has at present no intention of moving to the UK with them in the near future.

I should point out that the above is my personal opinion, not my opinion as a moderator. It does not necessarily represent the official views of thaivisa.com, it's owners, administrators or moderating team.

.

[RubbaJohnny]

I appreciate your frusration.

The right of famly life was enshrined in EU verbiage,sadly there has never been a worse moment the racsim ,unemployment and new Euro crisis make it increasingly likelit will be decades before any meaningful .Uk will appeal if you win and we'll all be reincarnated before it alters ,good luck

Oddly while certain Uk citizens seem to import endless wives from the sub continent Uk born folks married to Thais are discriminated against.

This is your first port of call.

http://www.echr.coe.int/echr/en/bottom/contact

http://www.echr.coe.int/echr/en/bottom/contact

PM if you seek help with French or experience of proctracted court cases I spent 7 years in Uk high Courts

Edited June 22, 2012 by RubbaJohnny

[paully]

If the OP is serious, and given the result of KA and others (reference to the minimum the Govt considers acceptable for a British family to live on) then a judicial review targeting the discriminatory element of having a higher requirement for a foreign spouse relationship could be the way to go.

But really OP needs legal advice and doing it alone I think is foolish. Simply, the OP doesn't have access to a small army of clerks and does not know due process.

He's already been told that a judicial review is the way to go and that he needs lawyers, bangkockney, but he thinks it's too expensive and doesn't want to spend any money on a case. It's up to him.

Edited June 22, 2012 by paully

[paully]

as already seen in this and his past topics, he will come up with links and quotes to prove that he is right and everyone else wrong.

There is that, 7by7.

[paully]

^^^ It's not just Mrs May - they're all at it now:

"Miliband shifts immigration policy, saying Labour 'got it wrong' "

http://www.bbc.co.uk/news/uk-politics-18539472

[7by7]

sadly there has never been a worse moment the racsim........

Racism? How so? The UK's immigration rules, and these proposals, apply to all immigrants regardless of their nationality, race or creed; except EEA nationals and their families. The only reason they don't also apply to EEA nationals and their families is the treaties on free movement within the EEA which the UK is signed up to. The same treaties which many British nationals benefit from to live, work and retire in other EEA states.

Oddly while certain Uk citizens seem to import endless wives from the sub continent........

Completely untrue. Persons in polygamous or polyandrous marriages, even if such is legal in the country where they took place, are only allowed to sponsor one of their partners for settlement in the UK. See the immigration rules paras 278 to 280

Uk born folks married to Thais are discriminated against.

No, they are not. I repeat; the UK's immigration rules, and these proposals, apply to all immigrants regardless of their nationality, race or creed; except EEA nationals and their families.

[AngryParent]

As previously, he will ignore the fact that the documents he is quoting are out of date and been superseded or he will cherry pick parts which support his argument and ignore those that don't.

.

Go out and have a beer. Rather than posting off topic ad hominem remarks that are groundless.

Till to day you have been unable to prove any of your above negative comments regarding what I post. At least I bring information to this forum (and so do many others that I value).

Just admit it, you don't like me and you are often proven wrong by me - just in this topic alone you were wrong when you said one has to apply for the visa before one can go to the courts!

This topic is about the procedures to bring such a legal case - it is NOT about saying negative things about me. So, can you remain on topic?

I have been on topic so far, but due to your actions I have had to reply to you.

Edited June 23, 2012 by AngryParent