Parliamentary Review Of The New Family Migration Rules

[kateharper]

Lucie - Thanks, i do too! Fingers crossed. Did you also fill out the online evidence form for the upcoming parliamentary review? It looks like it could really have an impact and may do some good. Great to know that there are some good MP's out there who are on our side.

[Tony M]

Yes we did, in order to appeal the decision we had to apply initially. I was weary at first but my parents were in contact with Kings Chambers lawyers who advised us on the best way to go about getting my husband a visa.

They are based in the UK and plan to hire a big shot immigration QC, i forget his name, to appeal the case. The lawyers did say there was "a slight" chance that we could get it first time around, but we're not getting our hopes up.

Thanks for your kind words, we are in for a crazy few months think.Thanks also for bringing attention to the Parliamentary review, it looks very promising. I sent out my evidence today. Here's hoping we get somewhere!

We applied on the 16th October, i got an e-mail through on Monday saying they had looked into it (as they had gone over the 12 weeks) and found the decision has been made, my husband is on stand by in Thailand waiting for his passport now.

It seems like your lawyers might be looking ahead to going to the European courts on human rights grounds. They would indeed need to have the application refused in order to do that, I think. Good for you, and very brave to submit an application knowing that it might be refused. But, an expensive exercise for you in the long run, unless you can get legal aid, I would guess.

Good luck !

[durhamboy]

Yes we did, in order to appeal the decision we had to apply initially. I was weary at first but my parents were in contact with Kings Chambers lawyers who advised us on the best way to go about getting my husband a visa.

They are based in the UK and plan to hire a big shot immigration QC, i forget his name, to appeal the case. The lawyers did say there was "a slight" chance that we could get it first time around, but we're not getting our hopes up.

Thanks for your kind words, we are in for a crazy few months think.Thanks also for bringing attention to the Parliamentary review, it looks very promising. I sent out my evidence today. Here's hoping we get somewhere!

We applied on the 16th October, i got an e-mail through on Monday saying they had looked into it (as they had gone over the 12 weeks) and found the decision has been made, my husband is on stand by in Thailand waiting for his passport now.

It seems like your lawyers might be looking ahead to going to the European courts on human rights grounds. They would indeed need to have the application refused in order to do that, I think. Good for you, and very brave to submit an application knowing that it might be refused. But, an expensive exercise for you in the long run, unless you can get legal aid, I would guess.

Good luck !

Yes Tony I was thinking that as well. I really hope that they grant the visa on humanitarian grounds but I think that is very unlikely - I'm not even sure that ECOs can make such a decision. So it would seem that, regretfully, the application will fail on the financial grounds. Likewise any appeal will likely fail on the same grounds which then leaves the European Court of Human Rights and, in particular, Article 8 concerning the right to respect for private and family life.- subject to some quite wide ranging exceptions which I dont believe have ever been tested in this context. It would likely be a very expensive exercise and could really only be afforded by people on legal aid or have +62k in the bank (in which case you would get the visa anyway!)

I wish you the very best of luck and please keep us updated on events if you can.

[Khonwan]

I have only just seen this thread so I haven’t yet read this online petition (though will do).

I am planning to take my family to the UK in 2015 for at least 5 years, having lived here in Thailand for 19 years. I have no qualifying income here and no intention of going back in advance to secure an income so I have started saving towards the required alternative of GBP62,500. That sum equates to GBP25k/pa for the 30 months, or so, length of visa. I believe this figure is a reasonable requirement for me (for my wife) since it matches my anticipated outgoings of GBP25k for my family of four (our two kids have Thai and British nationality), and I expect to satisfy the requirement.

One of the major differences I see between Thai people and British people (Scots more so, in my opinion) is the level of empathy. It is because I empathise with the many Brits who wish to return to UK with their non-EEC spouse but are preventing from doing so by the new regulations that I am more than happy to sign any petition in support of a more sensible and sensitive approach to this issue.

I would ask others who are not personally affected by the new regulations to empathise, to step into another’s shoes, to examine the fairness of a regulation that a British citizen who owns his/her own UK property outright (unlike me: I’ll have to rent) and whose outgoings will therefore be around GBP7,000pa less than mine is subject to the exact same requirement. This is the kind of irrational thinking that I expect from Thailand but not from UK. Furthermore, if that person (whose shoes I’m currently trying on) has no children, he will require substantially less again.

Please stand up for fairness and good common sense.

[7by7]

Six points I made in my submission to the review.

1) I have no objection to setting a minimum financial requirement, whether that be income, savings or a combination of both. My objection is that the figure is too high and takes no account of outgoings.

Instead of setting the figure at the level at which a British couple would no longer be eligible for income support and/or other income related benefits the figure should be the amount that a British couple claiming income support would receive; currently £111.45 per week for a couple where both are aged over 18. That is £5795.40 pa. plus housing costs in the form of housing benefit etc.

So I feel that the minimum income should be this figure. That is a couple should show that they can and will be adequately accommodated and once their housing costs, rent or mortgage, have been deducted they have an income left of at least £5795.40 pa. Of course, if they are living with friends or relatives then their housing costs will be minimal.

This figure would need to be increased if the couple have dependent children. The current income support rate is £64.99 per week per child, £3799.48. Which is actually higher than the current extra income required for children; but the total income required will still be less than at present.

2) Savings. Currently the first £16,000 of savings is disregarded at the initial visa stage and at the FLR stage after 30 months, but is used at the ILR stage. Why? If a couple have savings which they can use to support themselves until one or both of them are working, why can they not use all of those savings, as they can in an ILR application?

3) The current rules set a minimum figure which takes no account of outgoings. This means that someone earning just below the minimum, say £18,500, with minimal outgoings, rent or mortgage plus the usual living expenses, wont qualify whilst someone earning above the figure but with debt repayments to service which takes their actual disposable income below £18600 does qualify.

I can see no reason why sponsor's should not submit evidence of all their income and outgoings, e.g pay slips and bank statements, so the ECO can then calculate whether or not their disposable income is at or above the minimum required.

4) Third party support. Many ex pats return to the UK and, naturally, want to bring their foreign wife with them. They may have no choice in returning, e.g. because their contract has finished.

People in this position may not have been able to secure a job prior to their return, or if they have that job may not pay the required minimum.

They often have family who are not only willing to provide accommodation for the couple, but also willing and able to financially support them until one or both of them have secured work.

This represents absolutely no drain upon the public purse and I can see no logical reason why it is no longer allowed.

5) The Government have said that they will increase the minimum income each year, but not said by how much. Inflation? Average earnings? Benefit levels?

Like, I think, most people over the last few years my salary has increased by less than the cost of living, no matter how you calculate that.

What will happen to a couple who meet the income level at the initial visa stage but due to this level being increased at a higher rate than their income fail to meet it at the FLR or ILR stage?

What would happen if, through no fault of their own, one partner lost their job, taking their combined income below the minimum level?

With third party support being abolished, I see no alternative other than the foreign spouse being refuse at their next LR application and having to leave the UK.

6) These new rules, especially the financial requirements, are ill thought out, break up families,encourage visa fraud and whilst devastating to families will have virtually no effect on the government's aim of significantly reducing immigration.

Most immigrants are economic ones, i.e coming to the UK to work under the PBS or coming from other EEA countries to live and work in the UK.

These new financial requirements don't apply to them; at most they simply have to show that they can support and accommodate themselves and their families without recourse to public funds!

How is that fair?.

[ThaiVisaExpress]

7x7, I think most of here would agree with your points. I'm hoping that the government is also agreeing, to some extent, otherwise why would they even be looking at this ?

Only one point I will comment on, and that is point 5. I understand that nobody will be asked to leave the UK if they don't meet the financial requirements at each stage. The transitional arrangements ( from old rules to new rules ) - the IMMIGRATION DIRECTORATE INSTRUCTIONS FAMILY MEMBERS UNDER APPENDIX FM OF THE IMMIGRATION RULES Chapter 8

TRANSITIONAL PROVISIONS include this :

8. 10 year long residence

Paragraph 276B(i)(a) of the Immigration Rules allowing those with 10 years'

continuous lawful leave in the UK to apply for indefinite leave to remain will

continue to operate, where the application is decided on or after 9 July 2012

(irrespective of the date the application was made).

How that works, I have no idea. If an applicant for FLR doesn't qualify ( that is, doesn't meet the financial requirement) then what leave do they get each time they apply ? Are they granted 30 months each time until 10 years is up ? I guess so.

[7by7]

I hope you're right, but if a minimum income is required for FLR and if they don't meet that requirement, how can their FLR application be successful?

If it isn't, how can they lawfully live in the UK for 10 years?

That is what I don't understand.

[7by7]

Here's the link again to the petition for anyone who hasn't yet signed. Please do so even if you are not affected!

http://www.change.or...change-them-now

Thanks all!

That is not actually the government epetition Tony M posted the link to in his OP.

The government one is http://epetitions.direct.gov.uk/petitions/34835

I signed the government one some time ago, but have now signed yours as well.

[kateharper]

Tony M and durhamboy, the application was done with the help of lawyers. My parents were in contact with them as i was in Thailand. They mentioned all of the human rights being broken by the new laws in our application. They said there was a "slight chance" of us getting it first time around but that if it was a no they would get a QC in and he would fight our case in front of the judge.

This QC was very confident that we would get the visa on appeal and never mentioned the European Courts. We wouldn't have applied to start with if we ever thought we would fail in the long run, because as you said it's a long and pricey process! The problem with the new rules in our case is that there is no option for us to take in order to pass the application, they haven't considered a case like ours. I can't work as I'm pregnant so how can i sponsor my husband??

As for the expense we have agreed a price and it's nowhere near 62 k, don't know where you pulled that amount from, as you said if we did have that amount we would be able to get the visa anyway!!!

If we did fail at the hearing then yeah we would have to apply for legal aid.

As Tony M knows we will be contacting the media if we fail at the first stage! I have my case being discussed i another thread too.

Any advice or help is appreciated.

Thanks

Kate

[kateharper]

7x7 you make some great points, i really hope it works!

[7by7]

£62k, or to be accurate £62,500, is the level of savings needed to reduce the required income to zero.

QCs don't come cheap, and I can easily see how a QC's fees could easily be above £62,500; I've looked at various chambers and a QC's fees start at £250 per hour, plus expenses!

Your husband's case will, I believe, almost certainly need to go further than the First Tier (Immigration and Asylum Chamber). Do the agreed fees cover all costs up to and including the ECHR if necessary, or just the cost of taking his case to the FT(IAC)?

To be blunt, I cannot see how your QC can be confident that an appeal would succeed.

As far as I am aware, the appeal hearing will decide whether or not the refusal was correct within the immigration rules. If your husband is refused because you and he do not meet the financial requirements of those rules, then I cannot see how they can rule that the decision was incorrect.

I would be very interested to know why your QC is so confident that any refusal will be overturned on appeal.

I'm sorry to post so negatively, and I really do hope that it all works out for you sooner rather than later. However, I do feel that you may be overlooking some of the realities of the situation.

[kateharper]

You are being very pessimistic, we wouldn't have applied in the first place if we thought there was a big chance of us not succeeding.

I know about the 62 k savings, we have definitely done our research on the new rules, it would be stupid not to. We are not being naive here.

The QC has agreed a massively reduced fee because he is really interested in our case and has been waiting for a chance to fight these new rules in court. Believe me my parents and i do not have that kind of money! He is putting his reputation on the line and truly believes we will get the visa at the court hearing, the FT (IAC) level. He never mentioned the European Court of Human Rights.

The appeal hearing,as we have been told by our lawyers and the QC, looks at the case individually and is not just a case of whether we failed the immigration rules. He said the judge will be a lot more sympathetic at this stage. The job of checking whether there was a mistake with our case s for the entry clearance manager. The appeal hearing if for us to justify our case to a judge on why we think the refusal in unfair.

The QC is very experienced in immigration matters, and he has many problems with the new rules which he will bring up in court, he also thinks our case in particular stands out for various reasons, some of which i have mentioned on here.

We haven't overlooked anything believe me, this has been ongoing since August 2012, my husband, my parents and i have been looking into all of it for months!

I appreciate it's a difficult situation and i am being realistic but we do have to be positive and try don't we? We can't simply let them win, if no one fights they get away with it.

[7by7]

Yes, I am coming across as pessimistic; but please believe me when I say that I am sympathetic toward your situation, and I do hope that you are successful and that you and your husband can be reunited.

I have already said many times that I feel these new financial requirements are unfair and why.

However, I have always understood that both the First and Upper tribunals can only decide whether or not a refusal was correct in UK law, i.e. under the immigration rules, and that any decision that would change those rules would have to come from a higher court, and would probably need to go all the way to the ECHR to do so.

However, your QC believes otherwise and he is obviously more experienced and knowledgeable than I.

So, best of luck, and do let us know how you get on.

[kateharper]

Thank you 7x7, i know, you made some really great points in your evidence submission, I hope they use your review in court. I hope we can see the hearings here in the UK too! Indeed the financial requirements are ridiculous and affect so many people in so many different ways, for us it's that I am female, and it's proven that men earn more than women, and I'm pregnant and therefore can't work, making it impossible for me to meet the requirements. They really should have an alternative that isn't savings of 62 k!!

Anyway, still no news, this week has been the incredibly intense, not great while carrying a child but hey ho, we have to stay positive. Will let you know when we have more news.

Do you know if there have been any real life cases in the media, covering this? Really considering going to the papers, not sure it would necessarily help our case but I think the British public need to see how these new rules really affect real people and families and that the key phrases being thrown around by the government, such as "integration,burden on the tax payer and tackle visa abuse" are complete rubbish and don't make any sense at all!!

[ThaiVisaExpress]

Thank you 7x7, i know, you made some really great points in your evidence submission, I hope they use your review in court. I hope we can see the hearings here in the UK too! Indeed the financial requirements are ridiculous and affect so many people in so many different ways, for us it's that I am female, and it's proven that men earn more than women, and I'm pregnant and therefore can't work, making it impossible for me to meet the requirements. They really should have an alternative that isn't savings of 62 k!!

Anyway, still no news, this week has been the incredibly intense, not great while carrying a child but hey ho, we have to stay positive. Will let you know when we have more news.

Do you know if there have been any real life cases in the media, covering this? Really considering going to the papers, not sure it would necessarily help our case but I think the British public need to see how these new rules really affect real people and families and that the key phrases being thrown around by the government, such as "integration,burden on the tax payer and tackle visa abuse" are complete rubbish and don't make any sense at all!!

Kate,

This is Tony M. The new rules do kind of consider pregnant women ( or, rather, women on maternity leave). Where the rules insist that evidence of income must be wage slips, etc within 28 days of the date of application, they do allow for women on maternity leave to produce evidence from the 12 months prior to starting maternity leave. That will not, of course, help women who don't work, and may not help you. Of course, the income threshold of 18,600 GBP must still have been met in those 12 months.

Edited January 24, 2013 by ThaiVisaExpress

[7by7]

Do you know if there have been any real life cases in the media, covering this?

Just seen a couple being interviewed outside Lunar House on the BBC lunchtime news; she British he Palestinian.

Although that was an item on the backlog of LTR applications for families.

It does show, though, that there is media interest in family migration at the moment, following the publication of the inspector's report (see thread on this) so it may be that a media outlet will take up this issue using you as an example.

But you may not get very far because as theoldgit said

As usual the government of the day goes for the easy targets which gives the appearance, to the Great British Public, that the issue is being addressed.

The government don't care care about the Brits that are affected by the rules in the full knowledge that the electorate care even less.

[kateharper]

Still doesn't help if you weren't earning enough money, as i expect most people working in Thailand wouldn't either. It also doesn't take into account, as you say, those who aren't on maternity leave and those who are out of work! But thanks.

I will pursue, even though you do make it sound impossible, I think the media will be very interested.

The end of this is that my husband, the father of our unborn child, will potentially and probably miss the birth his first child because we simply don't have enough money, in accordance to the government, at this stage. Even though we have the ability and will to make money if given the chance!

Sorry, it is starting to grind now, difficult to stay strong when the rules are sooooo unfair!

Edited January 24, 2013 by kateharper

[7by7]

Yes, the financial requirements are too high and, as they only apply to family migrants and not to economic ones, unfair.

But, playing devil's advocate, again, for a moment, there are many who will say that it was your choice that led to your husband missing the birth of his first child as you could have remained in Thailand with him and given birth there.

Drawing media attention to your plight may not garner you the public sympathy you, and I, would wish for.

[kateharper]

Wow!! Kick me while I'm down....thought you were on my side!

We both decided it best to have the baby here, I needed my family around, and as he only has his old Dad left, we felt it was the best idea, plus we want the baby born here to be a British citizen, the hospitals are better, plus we really didn't think the decision would take this long, and are/were hopeful we might get it first time....

But, I do know that It was our decision for me to come to England before my husband so we "can't complain" too much about that aspect of it. However it still isn't fair aside from him potentially missing out on the birth. They are still essentially making me choose between my husband and my home country and family!

May have to stop checking in here as it's not really helping me stay positive any more. I realise you may just be "trying to help" but it's not helping at the moment.

[7by7]

I am not trying to 'kick you when you're down' but you do need to see this from every angle; even though that may be hard to do.

Hope for the best, but prepare for the worst (Disraeli, I think).

As intimated in theoldgit's post I quoted earlier, the majority of the great British public think that there are too many immigrants coming into the UK. They don't differentiate between family migrants and those from, for example, the EEA.

Your husband, my wife, the Pole working on a building site; all the same to the majority of Brits.

Those Brits vote, and the government can't do anything about immigration from the EEA, so have picked a soft target.

Hopefully your case, or one similar, will reach the stage where a court decision forces the government to change it's mind; but as I and others have said that probably means going all the way to the ECHR.

Hopefully, before that the current Parliamentary review will conclude that these new rules, especially the financial ones, are wrong and the review will recommend changes. But I don't know if the government have to follow those recommendations; does anyone?

I am sure that one way or another you and your husband will be reunited; but I do fear that it might not happen as quickly as you, or I, would hope.

BTW, assuming that you are British otherwise than by descent, that is born in the UK or a qualifying territory and at least one of your parents is British or was legally resident in the UK or that qualifying territory at the time of your birth, then your child will be British wherever they are born.

[Tony M]

I think most people who responded will have received the below. Unfortunately, those of us in Thailand are unlikey to be able to attend :

Family Migration Inquiry - Oral Evidence Session

Date: Monday, 11th February 2013

Time: 17:00 - 18:30

Venue: Committee Room 17, House of Commons, Houses of Parliament

Dear

You are invited to attend the All-Party Parliamentary Group on Migration's first oral evidence session into the impact of the changes to the family migration rules that came into force on 9th July 2012.

The APPG Migration inquiry committee will take evidence from four witnesses, followed by a brief opportunity for contributions from the floor.

Witnesses:

• Professor David Metcalf, Migration Advisory Committee
  
• Jill Rutter, Daycare Trust
  
• Barry O'Leary, Immigration Law Practitioners' Association
  
• Mahmud Qayum, Camden Community Law Centre
  

Please note that the evidence session will have limited room for attendees. If you wish to attend, you must confirm in advance by signing up on event brite here http://familyinquiry.eventbrite.com.

For full information about the APPG Migration inquiry, including the terms of reference, please visit www.appgmigration.org.uk/family-inquiry. A second oral evidence session will take place on 4th March, and further details will be circulated at a later date.

Best wishes,

Awale Olad

Parliamentary Affairs Officer

Edited January 31, 2013 by Tony M

[7by7]

You can listen to the above session by clicking on the link on this page.

N.B. Not sure if it will work outside the UK.

[Jay Sata]

You can listen to the above session by clicking on the link on this page.

N.B. Not sure if it will work outside the UK.

Yes it works fine here in Thailand.