Appealing Uk Settlement Visa Refusal On Human Rights Grounds.

[7by7]

I've recently had a PM from a member on this subject, and I hope that they do not mind me posting my reply here.

I'm doing so as I would be very interested in the views and comments of others on that reply; which was:-

"The new rules have not been in force long enough for anyone who has been refused under them to have had their appeal heard yet.

I, too, will be very interested in the result. if and when such an appeal happens, as will many others.

The difficulty of any appeal on human rights grounds is that the relevant article of the European Convention on Human Rights, article 8, says

ARTICLE 8

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 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 said that they believe the new financial rules do not breach this article, due to the 'economic well being' exception.

Any appeal on human rights grounds would need to go all the way to the European Court of Justice; a lengthy and expensive process with no guarantee of success."

[durhamboy]

7by7 - We discussed this before in a previous thread. In this context the relevant exception that the UK Govt. would rely on, as you say, is probably "the economic well-being of the country" i.e. that the family might claim benefits that they would not have got had they not been granted a UK visa.

Personally I think that that interpretation would be hogwash. I really cannot imagine that an Article on Human Rights would be so petty as to exclude people's rights for the sake of a few benefits. As I said in the previous thread I reckon that the thinking behind this exception when it was drafted was that people who had major criminal convictions in their own country e.g. for credit card fraud, bank robbery etc could be excluded. Yet to be tested in the Court.

[cuddleypete]

Interesting post

[paully]

Yet to be tested in the Court.

That's exactly the point, isn't it. Article 8, like many Articles of the ECHR, gives a qualified right not a absolute one; the limit of the qualifications to be ultimately set by the Court. You may be right in your view but I wouldn't be 100% sure. "The economic well-being of the country", in regard to respecting private and family life, must mean something.

[7by7]

The government's argument for saying that these new rules don't breach article 8, or any other article of the ECHR, can be found in paras. 27 to 69 of the original Statement of Intent.

[paully]

^ Thanks, 7by7.

It strikes me that the government could be in trouble on this part of their statement:

"43. A person who does not meet the requirements of the rules will no longer be considered for Discretionary Leave outside the Immigration Rules on Article 8 grounds. A grant of Discretionary Leave provides automatic access to public funds, which currently places them in a better position than those who meet the rules."

It's going to be difficult, IMHO, for the government to take away a discretionary right completely even if it (as they argue) gives the successful applicant preferential treatment in regard to access to public funds.

[kateharper]

I am about to embark on an appeal in human rights grounds! Our lawyers are really confident that we have a strong case. They said that a lot of people have been refused visas since the new rules set in and a lot of them have appealed and won on human rights grounds!

We have another few points to argue too, but our main focus will be human rights, plus "the best interests of a child" as mentioned in the UKBA's recent response to the inspector's report!

The fact that they sent us the wrong decision letter will help to prove how incompetent they are, we are lodging a formal complaint on that too!

[Tony M]

Kate,

Good luck to you. I hope you get a positive result..

There may have been some allowed appeals, but they will mostly, I think, be in-country appeals. That is, from people trying to stay in the UK, rather than visa appicants, but I may be wrong. I would have thought that, if appeals had been won, then we would have heard about it. I think many here will be waiting to learn what happens.

[7by7]

Indeed.

Since these new rules only came into force last July, not yet 8 months ago, and since it can take up to 3 months for an out of country settlement application to be decided and then a further 6 months for an appeal to be decided by the FTTIAC, I am surprised by your lawyers' use of the word 'many!'

There simply would not have been the time for very many cases to have been heard and decided.

As Tony M says, we would also have heard of at least some of them via various immigration news sites.

I should also add that their clerical incompetence in sending you someone else's refusal notice has no bearing on whether or not your husband's refusal was correct under the rules.

Edited January 27, 2013 by 7by7

[kateharper]

7x7 Again, thanks for the support and the vote of confidence, jeez! Not all appeal cases take 6 months anyway.

Thanks Tony M , I understand you're sceptical but believe me, we will win and my husband will get here and get his visa on appeal! We truly believe that.

[bobrussell]

A successful appeal would lead to an immediate re-think of the legislation or an appeal by the government against the decision. I agree we would have heard because such an appeal would be plastered over all the immigration websites.

I have to say that my personal belief is that the new rules do break the human rights legislation. As an EU citizen I consider it my right to marry and live with whoever I choose (within reason!). I do not, however consider it my right to have someone else pay for me to do so.

If I can demonstrate that my family can live without claiming extra benefits or be a burden to the tax payer then the state should not interfere with my choice. I would expect to have to provide evidence that this is the case and accept that if my circumstances changed my family might have to leave the UK.

As for time scale the UKBA has to prepare their evidence and send it in to the tribunal within 12 weeks of the appeal being lodged. A six month timescale does not seem that unrealistic therefore.

Edited January 29, 2013 by bobrussell

[theoldgit]

I seem to recall reading somewhere that HMG were questioning some "Human Rights" issues, and would seem to have The Great British Public onside. Not so much with Kate's position, but with the number of terrorists and convicted criminals who HMG doesn't seem able to remove because of their Human Rights. I believe that The Great British Public would see a "one size fits all" with respect to Human Rights issues and wouldn't differentiate between those who play the Human Rights Card to abuse the system, and genuine cases like Kate's.

Maybe, in Kate's case, HMG would argue that they are not affecting their human right to live together as a family, because you could live together as a family in Thailand. I'm not saying that is would they would say, or that I agree with it, but they just might do.

[kateharper]

I seem to recall reading somewhere that HMG were questioning some "Human Rights" issues, and would seem to have The Great British Public onside. Not so much with Kate's position, but with the number of terrorists and convicted criminals who HMG doesn't seem able to remove because of their Human Rights. I believe that The Great British Public would see a "one size fits all" with respect to Human Rights issues and wouldn't differentiate between those who play the Human Rights Card to abuse the system, and genuine cases like Kate's.

Maybe, in Kate's case, HMG would argue that they are not affecting their human right to live together as a family, because you could live together as a family in Thailand. I'm not saying that is would they would say, or that I agree with it, but they just might do.

That's exactly what they are saying, that if we want the right to a family life we should live in Thailand. The cheek! They said in the decision letter, regarding to human rights,

" With regards to Article 8, I note that your sponsor has resided with you in Thailand for a number of years and that your sponsor has chosen to return to the United Kingdom for the birth of your child. I note that there is no impediment to you and your sponsor continuing to reside as a family unit in Thailand. Your representatives state that your sponsor now wishes to start her own family in the United Kingdom as she will be supported by her immediate family and friends. I am therefore not satisfied that you have demonstrated that there would be a breach of Article 8 of the ECHR."

What if I couldn't get a job there? What if they were as strict about visa's?

I have found some great organisations on all this and I quote one

"In addition you should consider appealing if you haven't already. There are a stack of cases being lined up for a human rights challenge through the courts at the moment and it might be a good idea for you to get legal advice as to whether the facts in your case raise this HR element."

This is from the Migrants Rights Network. I was asking about similar cases to mine, there are so many families being torn apart by these awful rules. I am so happy that lots os people who ahve been refused are going to appeal!! We have to fight them, they can't win!!

22 hours ago · Like

[ThaiVisaExpress]

Kate,

Everyone here hopes that you will be successful. The UKBA will probably rely on something like this :

Section 55 (of the Borders, Citizenship and Immigration Act 2009 ) does not apply to entry clearance cases, even where the applicant (who will be outside the UK by the nature of the application) has a child who is in the UK. The new family rules are compliant with Article 8, but where an applicant for entry clearance has a child in the UK and fails to meet the requirements of the rules, they can raise any exceptional circumstances which would mean that a refusal under the rules would result in an unjustifiably harsh outcome – i.e. one that is incompatible with Article 8 – for the applicant or their child. The UK Border Agency’s assessment of these exceptional circumstances will involve a consideration of the best interests of the child and could result in a grant of leave outside the rules where appropriate.

Keep us updated !

Tony M

[kateharper]

But that seems to be in our favour rather than the UKBA?

[steady]

You replied to an earlier post, "That's exactly what they are saying, that if we want the right to a family life we should live in Thailand. The cheek!" I don't know why you you think it's cheeky. The government has a set of rules which tend to get the public's vote in the present political climate, especially when they make very clear the rules that must be satisfied to get a visa. This doesn't mean that I don't sympathise with your predicament, it's just that the government has a set of rules which tends to satisfy the majorityof voters who are continually bombarded by the media about negative issues with immigrants and immigration into the UK. I think that most people would think that in this case the government's rules are reasonable, and I assume that the government have lawyers which will fight any challenges to their perception of the law.

I wish you luck but fear that any positive outcome may be a long time in coming.

[ThaiVisaExpress]

But that seems to be in our favour rather than the UKBA?

Yes, Kate, but you have to prove "these exceptional circumstances".

Tony M

[durhamboy]

I may be wrong but there is a department at the UKBA in London called the Referred Casework Unit (RCU) and I thought that any settlement applications which involved the possibiity of denial of human rights (particularly under Article 8) has (or should) be referred to them. Obviously this hasnt been done in this case by the ECO and they just gave an outright refusal.

Nobody in this forum has mentioned the RCU so I am kind of thinking this procedure may have been scrapped but does anyone know about the RCU and what I an talking about?

Btw, I think that the ECO saying that the OP can live in Thailand is a pretty poor excuse to say human rights are not being denied. How do they know that a Thai visa will not be denied? The OP and her child when born are British and they are being denied the right to live as a family in the UK. What if the OP was North Korean - would the ECO say the same thing.

Also, living conditions in Thailand are not the same as the UK. A child is more than twice as likely to die before the age of 5 in Thailand than the UK - 12 deaths per 1000 in Thailand and 5 in the UK.

- Source : World Bank 2011 figures.

[kateharper]

@steady. I whole heartedly disagree and can't believe that you think it's okay for the government to tell me where to live! From research and help from some fantastic organisations, it most certainly isn't true that "most people would think the governments rules are reasonable" most people don't even know about these rules, they are just given key phrases such as " visa abuse, integration and burden on the tax payer" from the shitty government and are told that immigration numbers are down. If people knew how these awful rules are tearing families apart they would definitely disagree that they are reasonable. I take it you are lucky enough to not be affected by these rules? How would you feel if you were told you couldn't live with your family?

As durhamboy says above there are plenty of reasons why just saying go and live in Thailand is not okay! There is no health and safety over there at all, the medical care is not the same, the roads are the most dangerous I've seen plus the fact that we have no family over there at all, my husbands family now consists of his elderly disabled father a 15 hour bus journey to Isaan, so we have no support system over there.

I am a British citizen and our child will be too, as durhamboy rightly says, thanks , we are being denied the right to a family life in our own country simple because my husband is Thai and we don't earn "enough" in the governments eyes! It's a disgrace. Oh and thanks for those scary statistics, scary!

Thanks Tony M, we will be proving those exceptional circumstances! I have a consultation with our councillor tomorrow morning! "The best interests of the child" has to be our biggest fight!

[ThaiVisaExpress]

Kate,

The Independent Chief Inspector said something along these lines ( I don't think they are actual quotes) in his most recent report on this subject:

· Article 8 of the ECHR is not being considered in every case;

· Some ECO’s did not think that they had to consider Article 8;

· Even when ECO’s do consider Article 8, this is often not case specific;

· The best interests of the child are not being considered in every case where there is a UK based child;

· In many cases, UKBA are not retaining documents or notes to enable a review of the decision. Caseworkers are instructed that they should retain only documents of particular relevance to the decision.

I'm sure your lawyer/barrister will be aware of these points

Tony M

[paully]

What if I couldn't get a job there? What if they were as strict about visa's?

'

With respect, Kate, that's not your strongest point, in part because of this from the refusal "I note that there is no impediment to you and your sponsor continuing to reside as a family unit in Thailand."

Keep hammering on at the 'the best interests of the child' point, but bear in mind that if the child is young he/she will be treated as being easily adaptable to ilfe in another country. Good luck!

[kateharper]

Situations change don't they? And I think it's a very valid point, what if those points were true, where would we be expected to live? What if I lost my job? We would be forced to be apart! Our child isn't even born yet and so it will be adaptable to live here, but how is that okay without it's Father here???

Can't believe how pessimistic some of you guys are, it's pretty obvious that none of you are going through this, so why come in here and comment so negatively? Should be supportive.You say Good Luck, but not sure how sincere that is.

[Jay Sata]

You will of course also have to overcome the English language test for your partner. You do not say what employment he currently has but

many Thai qualifications are not recognised in Europe. The language tests are now standard for a number of EU countries.

You seem to dismiss Thailand as a third world country that has no appeal for you. However those of us with long term wives/husbands/partners appreciate the good and bad in both countries.

Yes the driving is bad in Thailand and rules and regulations that are normal in Europe are ignored here. However the laid back lifestyle has its attractions. I believe children are better looked after in Thailand than many cities in the UK. They do not vandalise public property for example and graffiti is rare. Thai people do not take elderly parents and stick them in 'Gods waiting room' or care homes as they are described in GB.

I think you'll have an uphill battle with your application and have not considered a Thai lifestyle.

[paully]

why come in here and comment so negatively? Should be supportive.You say Good Luck, but not sure how sincere that is.

Not trying to be negative, just realistic! The 'good luck' was perfectly sincere.

[Farang0tang]

Even ignoring the arguement whether its in a childs best interests or not that he/she is brought up in UK as opposed to Thailand (and I am sure most would agree the UK wins on that point), IMHO a mixed nationality family should be able to pick and choose which country to live in at any present time, without prejudice, and as a basic human right!

Good Luck kateharper

Edited January 31, 2013 by Farang0tang

[Jay Sata]

Even ignoring the arguement whether its in a childs best interests or not that he/she is brought up in UK as opposed to Thailand (and I am sure most would agree the UK wins on that point), IMHO a mixed nationality family should be able to pick and choose which country to live in at any present time, without prejudice, and as a basic human right!

Good Luck kateharper

It would be nice if the Thai government saw things that way. As it stands we are all here on the whim of immigration without the right to own property or work to support a family.

[durhamboy]

Situations change don't they? And I think it's a very valid point, what if those points were true, where would we be expected to live? What if I lost my job? We would be forced to be apart! Our child isn't even born yet and so it will be adaptable to live here, but how is that okay without it's Father here???

Can't believe how pessimistic some of you guys are, it's pretty obvious that none of you are going through this, so why come in here and comment so negatively? Should be supportive.You say Good Luck, but not sure how sincere that is.

Kate - I think everyone in this forum is sincere in wishing you success. Some of them are a little prickly when Thailand is criticised but people have different reasons for living in Thailand and what suits one person doesnt always suit another. In your position I would definitely choose the UK over Thailand.

Also, it is true everyone here hasn't gone through what you are going through. However they are quite correct to play "Devil's Advocate" because collectively we have a lot of experience of the rules, the way they are applied and how the UKBA thinks. If things go wrong for you it will be very emotional and expensive. I think you have a good case but people are quite right to point out possible pitfalls especially as there are no known precedents for Article 8.

About 10 years ago I sued the Home Office (now UKBA) over a settlement visa issue. I lost. The Judge said that whilst she sympathised with my case the Home Office owed "no duty of care" to myself or my then wife. I also thought I was morally right but it got thrown out AND I had to pay costs.

Btw, I take it from the lack of posts that no one has heard of this RCU - Referred Casework Unit I posted about earlier?

[Tony M]

Situations change don't they? And I think it's a very valid point, what if those points were true, where would we be expected to live? What if I lost my job? We would be forced to be apart! Our child isn't even born yet and so it will be adaptable to live here, but how is that okay without it's Father here???

Can't believe how pessimistic some of you guys are, it's pretty obvious that none of you are going through this, so why come in here and comment so negatively? Should be supportive.You say Good Luck, but not sure how sincere that is.

Kate - I think everyone in this forum is sincere in wishing you success. Some of them are a little prickly when Thailand is criticised but people have different reasons for living in Thailand and what suits one person doesnt always suit another. In your position I would definitely choose the UK over Thailand.

Also, it is true everyone here hasn't gone through what you are going through. However they are quite correct to play "Devil's Advocate" because collectively we have a lot of experience of the rules, the way they are applied and how the UKBA thinks. If things go wrong for you it will be very emotional and expensive. I think you have a good case but people are quite right to point out possible pitfalls especially as there are no known precedents for Article 8.

About 10 years ago I sued the Home Office (now UKBA) over a settlement visa issue. I lost. The Judge said that whilst she sympathised with my case the Home Office owed "no duty of care" to myself or my then wife. I also thought I was morally right but it got thrown out AND I had to pay costs.

Btw, I take it from the lack of posts that no one has heard of this RCU - Referred Casework Unit I posted about earlier?

Yes, the RCU still exists, but the application was considered under Article 8, so I don't think the ECO will have seen any reason to refer it. In addition, the RCU was used mainly, or wholly, for applications within the UK, not for entry clearance applications, I think.

[TommoPhysicist]

If you were a man, you could just appeal and say you don't have enough money to stay in Thailand.

As a woman, do don't need any money to stay in Thailand, as your Thai husband is expected to support you.

Funny old world!

PS

Good luck with your appeal.

Edited February 1, 2013 by TommoPhysicist

[durhamboy]

_{Thanks Tony. I do recall reading somewhere in the official published guidance to ECOs (I think) that any settlement applications that involve human rights (or humanitarian grounds) should be referred to this RCU in London. So if that is the case then the ECO would have reason to refer it. I may be wrong.}