Appealing Uk Settlement Visa Refusal On Human Rights Grounds.

[somtampet]

In a perfect world there would be no need for visas and everyone could live wherever they desired.

We don't live in a perfect world.

From what she has posted, Ms Harper's husband was refused because he did not meet the new financial requirement.

As those familiar with my posts will know, I do think that the new financial requirement is unfair for three reasons; the minimum income figure is too high, the first £16K of savings is discounted (except at the ILR stage) and third party support is not allowed.

I made these points in my submission to the Parliamentary review (and in the public consultation before they became law), and hope that all those posting here did similar.

But Ms Harper has also posted that she has no job in the UK and wont be working as she is soon to give birth. Furthermore, she has also posted that her husband has no job in the UK either. So one has to hope that her family would have been able to support them until one of them found work.

Otherwise he would have been refused under the old rules, too!

I have posted earlier my thoughts on the reasoning of the UKBA not making him a special case under Article 8, which was greeted with a torrent of abuse.

So be it. If Ms Harper only wants cyber hugs and sympathy, she's in the wrong place. This is a forum, a place for discussion and discussion means looking at all sides of an argument.

She certainly doesn''t agree with what I posted, as is her right. But I also have the right to post it (provided I remain within the forum rules, of course).

Even though it was a PM from Ms Harper which prompted me to start this topic, I did so with the aim of having a discussion and seeking opinions on the overall effect of Article 8 on these new rules, not to look at any particular case in detail. Seem to have wandered away from that somewhat.

The ECO who refused Ms Harper's husband specifically says in the refusal notice that Article 8 has been considered and that they believe this refusal does not breach it. Now this is, and has been for as long as I can remember, been standard wording in a family settlement refusal notice; but in this case the ECO actually says that as Ms Harper and her husband have been living together in Thailand for the last 7 years then there is no reason why they cannot continue to do so. (Those who talk of work permits, border runs etc. should check the Thai rules for the foreign wife of a Thai man; whole different ball game to the foreign husband of a Thai woman, as I have pointed out previously.)

The ECO has a point.

The government's (no doubt very expensive) human rights lawyers have looked at the new rules and opined that they do not breach Article 8.

Ms Harper's lawyers differ.

The courts will decide who is right.

Whether Ms Harper's husband's case, and those of others, will cause these new rules to be changed we will have to wait and see. But it will be a long journey as I suspect that the government will want to go all the way to the ECHR should lower courts find against them.

Whether the Parliamentary review will change things, again we will have to wait and see; but I'm not holding my breath waiting for that, either.

Finally, those who think UK education and health care are so marvelous have obviously not been paying attention to the events of the last decade or so!

(Edited for typos)

A very good post,not sure if the lady wants to here it,but,yes,she asked for replies,and this is a good one mate.

[Eff1n2ret]

sounds to me that after 7 years she got pregnant and omg,lets go back to uk,we get free everything,times are changing lass

I don't think such crude aspersions against this lady's case are very helpful. Any British citizen should feel free to go back and live in their own country if they want to, whatever their motives for doing so. If they also want to take their foreign family with them, it's also quite reasonable that their fellow citizens, via rules imposed by an elected government, should impose conditions on their entry. The issue in this case is whether those conditions are reasonable.

The growth of Human Rights caselaw has been taken to mean in some quarters that anybody who feels themselves in the least bit disadvantaged can assert that their "human rights" have been infringed - thus foreign criminals are able to plead that their right to a family life outweighs any need for the country whose hospitality they have violated to get rid of them. Caselaw actually established quite a long time ago that the right to family life did not confer any right to exercise it in any particular place. That has been qualified considerably since, to the extent that separating a parent from his/her UK children is nearly always considered a breach of that right.

In Ms Harper's case she is not separated from her family, she is exercising her right in Thailand. The issue is whether the financial requirements now imposed on settlement visas are a disproportionate bar to her and others exercising the same rights in the UK. We may all have an opinion about those financial requirements, but in the end it is the courts that will decide, as they seem to be called on to do in nearly all changes in immigration legislation these days.

To all who see the financial requirements as an iniquity which is bound to be overturned by the courts, I would remind them of the Punjabi farmer who was unable to join his wife and six(!) children in Birmingham because he could not speak English and was never going to be able to pass the A1 test. The court ruled that UKBA are entitled to impose such a requirement. And all who only ever view settlement legislation in terms of UK/Thai marriages should take a minute to think of the countries which potentially generate vastly greater numbers of settlement applications and they might understand why the UK government is attempting to stem the flow.

Ms Harper should concentrate on finding the best lawyers she can and taking their advice, whether it's what she wants to hear ot not. On this forum she will get both good and bad advice and she won't always know which is which, including mine, and the temptation to be swayed only by the advice she likes might not help her.

[ThaiVisaExpress]

sounds to me that after 7 years she got pregnant and omg,lets go back to uk,we get free everything,times are changing lass

I don't think such crude aspersions against this lady's case are very helpful. Any British citizen should feel free to go back and live in their own country if they want to, whatever their motives for doing so. If they also want to take their foreign family with them, it's also quite reasonable that their fellow citizens, via rules imposed by an elected government, should impose conditions on their entry. The issue in this case is whether those conditions are reasonable.

The growth of Human Rights caselaw has been taken to mean in some quarters that anybody who feels themselves in the least bit disadvantaged can assert that their "human rights" have been infringed - thus foreign criminals are able to plead that their right to a family life outweighs any need for the country whose hospitality they have violated to get rid of them. Caselaw actually established quite a long time ago that the right to family life did not confer any right to exercise it in any particular place. That has been qualified considerably since, to the extent that separating a parent from his/her UK children is nearly always considered a breach of that right.

In Ms Harper's case she is not separated from her family, she is exercising her right in Thailand. The issue is whether the financial requirements now imposed on settlement visas are a disproportionate bar to her and others exercising the same rights in the UK. We may all have an opinion about those financial requirements, but in the end it is the courts that will decide, as they seem to be called on to do in nearly all changes in immigration legislation these days.

To all who see the financial requirements as an iniquity which is bound to be overturned by the courts, I would remind them of the Punjabi farmer who was unable to join his wife and six(!) children in Birmingham because he could not speak English and was never going to be able to pass the A1 test. The court ruled that UKBA are entitled to impose such a requirement. And all who only ever view settlement legislation in terms of UK/Thai marriages should take a minute to think of the countries which potentially generate vastly greater numbers of settlement applications and they might understand why the UK government is attempting to stem the flow.

Ms Harper should concentrate on finding the best lawyers she can and taking their advice, whether it's what she wants to hear ot not. On this forum she will get both good and bad advice and she won't always know which is which, including mine, and the temptation to be swayed only by the advice she likes might not help her.

A measured and sensible response.

Tony M

[7by7]

sounds to me that after 7 years she got pregnant and omg,lets go back to uk,we get free everything,times are changing lass

I don't think such crude aspersions against this lady's case are very helpful.

Indeed.

If Ms Harper, or any other British citizen, wants to raise her children in the UK and have her foriegn spouse live in the UK with her then that is her choice to make.

But, as Eff1n2ret continues:

If they also want to take their foreign family with them, it's also quite reasonable that their fellow citizens, via rules imposed by an elected government, should impose conditions on their entry. The issue in this case is whether those conditions are reasonable.

The ECHR has been in force for over 60 years and the UK was one of the original signatories. If, for example, the right to family life meant that a British citizen could bring their qualifying family members to live in the UK regardless of whether or not they met the requirements of the UK immigration rules, then those self same immigration rules would not exist in their present form! All that would be required was to show that the person was a qualifying family member of a British citizen.

That, as we all know, is not the case.

The issue here is whether or not the new financial requirements are reasonable.

The government and it's lawyers say yes.

Many others, myself included, say no.

It will be for the courts to decide who is correct.

[theoldgit]

Very balanced posts by Eff1n2ret and 7by7, I'm sure this will be tested in the UK and European courts, though I'm sure it will take many months, if not years, to be finally resolved.

People give advice freely on this forum, and some that do have many years of experience in this field, often when offering a view it goes against what people want to hear, but it doesn't mean posters are not sympathetic to their plight, sometimes peoples expectations need to be structured.

Various governments have gone on record in saying that the Human Rights rules are being abused and this view is accepted by a vast number of members of the Great British public, the people who elect the Government. I have personal experience of people attempting to "play the human rights card" and when people do, others are tarred with the same brush.

This is clearly an emotive issue and people will make their views known.

[bangkockney]

In this case, however, I believe there is more to it. The UK sponsor is female and faces double jeopardy: in order for her family to settle in the UK she is expected to endure separation from both spouse and child. She is stuck between a rock and hard place - the choice of time with her child will extend the separation from her spouse.

Is that respecting private and family life?

Clearly the current rules as they stand are discriminatory towards women. Is that right? Is that fair?

[Jay Sata]

In this case, however, I believe there is more to it. The UK sponsor is female and faces double jeopardy: in order for her family to settle in the UK she is expected to endure separation from both spouse and child. She is stuck between a rock and hard place - the choice of time with her child will extend the separation from her spouse.

Is that respecting private and family life?

Clearly the current rules as they stand are discriminatory towards women. Is that right? Is that fair?

I can't see any discrimination. She has lived in Thailand for 7 years with no problems but does not want to give birth or raise her child pre school outside the UK. If born in Thailand the child would still be entitled to a UK passport as well as a Thai.

In fact based on my experience a bilingual Thai has an assured future in the UK as a court translator. I cannot see any reason why a child born in Thailand is disadvantaged pre school.

OK let me give you another example. I have a friend who is married to a Thai. They lived in the UK for many years with her having ILR.

She never bothered to get a UK passport despite being eligible thinking that long term her life was in Thailand.

Several years ago they moved to Thailand where they bought a house. They now have a son of four and are happy here. However if he or his son got sick they cannot afford big hospitals bills so will be on the next aircraft back to the UK and throw themselves to the mercy of social services who will have to to take care of them.

However his wife will be stuck in Thailand as they will not qualify for residency in the UK as a married couple (He is 68) as they cannot pass the financial test.

Unfair or what?

Edited February 10, 2013 by Jay Sata

[bangkockney]

In this case, however, I believe there is more to it. The UK sponsor is female and faces double jeopardy: in order for her family to settle in the UK she is expected to endure separation from both spouse and child. She is stuck between a rock and hard place - the choice of time with her child will extend the separation from her spouse.

Is that respecting private and family life?

Clearly the current rules as they stand are discriminatory towards women. Is that right? Is that fair?

OK let me give you another example. I have a friend who is married to a Thai. They lived in the UK for many years with her having ILR.

She never bothered to get a UK passport despite being eligible thinking that long term her life was in Thailand.

Several years ago they moved to Thailand where they bought a house. They now have a son of four and are happy here. However if he or his son got sick they cannot afford big hospitals bills so will be on the next aircraft back to the UK and throw themselves to the mercy of social services who will have to to take care of them.

However his wife will be stuck in Thailand as they will not qualify for residency in the UK as a married couple (He is 68) as they cannot pass the financial test.

Unfair or what?

Your example is completely different.

The need for returning to the UK may well be fully mitigated with health insurance in Thailand.

Further, and if I may be so bold, it was poor planning for the wife not to take citizenship when it was available, for precisely the reason you cite.

In addition, mitigating circumstances such as a sick child can see even a tourist visa extended within the UK, so it's not quite as black and white as you make out.

However I do know plenty of Thais in the UK who have chosen to keep ILR for years and not take citizenship. Personally, the mind boggles.

[Jay Sata]

In this case, however, I believe there is more to it. The UK sponsor is female and faces double jeopardy: in order for her family to settle in the UK she is expected to endure separation from both spouse and child. She is stuck between a rock and hard place - the choice of time with her child will extend the separation from her spouse.

Is that respecting private and family life?

Clearly the current rules as they stand are discriminatory towards women. Is that right? Is that fair?

OK let me give you another example. I have a friend who is married to a Thai. They lived in the UK for many years with her having ILR.

She never bothered to get a UK passport despite being eligible thinking that long term her life was in Thailand.

Several years ago they moved to Thailand where they bought a house. They now have a son of four and are happy here. However if he or his son got sick they cannot afford big hospitals bills so will be on the next aircraft back to the UK and throw themselves to the mercy of social services who will have to to take care of them.

However his wife will be stuck in Thailand as they will not qualify for residency in the UK as a married couple (He is 68) as they cannot pass the financial test.

Unfair or what?

Your example is completely different.

The need for returning to the UK may well be fully mitigated with health insurance in Thailand.

Further, and if I may be so bold, it was poor planning for the wife not to take citizenship when it was available, for precisely the reason you cite.

In addition, mitigating circumstances such as a sick child can see even a tourist visa extended within the UK, so it's not quite as black and white as you make out.

However I do know plenty of Thais in the UK who have chosen to keep ILR for years and not take citizenship. Personally, the mind boggles.

It does boggle for sure and let this thread be a warning to those in that situation.

As I understand it once a Thai partner returns home if they do not come back to the UK in two years they have to start again.

AS for health insurance in Thailand....once you pass 65 forget it as the costs escalate with conditions.

[7by7]

As I understand it once a Thai partner returns home if they do not come back to the UK in two years they have to start again.

If they only hold ILR then essentially, yes.

ILR will lapse if the holder spends a continuous period of 2 years or more out of the UK.

Furthermore, if living outside the UK and using ILR for visits then when this becomes apparent to an immigration officer upon seeking UK entry the ILR will be canceled; though the holder will be allowed in as a visitor on that occasion.

Once naturalised as British the new citizen has exactly the same rights as any other British citizen, including the right to spend as long as they wish outside the UK and return at any time for any period.

[bangkockney]

In this case, however, I believe there is more to it. The UK sponsor is female and faces double jeopardy: in order for her family to settle in the UK she is expected to endure separation from both spouse and child. She is stuck between a rock and hard place - the choice of time with her child will extend the separation from her spouse.

Is that respecting private and family life?

Clearly the current rules as they stand are discriminatory towards women. Is that right? Is that fair?

OK let me give you another example. I have a friend who is married to a Thai. They lived in the UK for many years with her having ILR.

She never bothered to get a UK passport despite being eligible thinking that long term her life was in Thailand.

Several years ago they moved to Thailand where they bought a house. They now have a son of four and are happy here. However if he or his son got sick they cannot afford big hospitals bills so will be on the next aircraft back to the UK and throw themselves to the mercy of social services who will have to to take care of them.

However his wife will be stuck in Thailand as they will not qualify for residency in the UK as a married couple (He is 68) as they cannot pass the financial test.

Unfair or what?

Your example is completely different.

The need for returning to the UK may well be fully mitigated with health insurance in Thailand.

Further, and if I may be so bold, it was poor planning for the wife not to take citizenship when it was available, for precisely the reason you cite.

In addition, mitigating circumstances such as a sick child can see even a tourist visa extended within the UK, so it's not quite as black and white as you make out.

However I do know plenty of Thais in the UK who have chosen to keep ILR for years and not take citizenship. Personally, the mind boggles.

It does boggle for sure and let this thread be a warning to those in that situation.

As I understand it once a Thai partner returns home if they do not come back to the UK in two years they have to start again.

AS for health insurance in Thailand....once you pass 65 forget it as the costs escalate with conditions.

Have your friend check out LawtonAsia, hope they can help.

[7by7]

In this case, however, I believe there is more to it. The UK sponsor is female and faces double jeopardy: in order for her family to settle in the UK she is expected to endure separation from both spouse and child. She is stuck between a rock and hard place - the choice of time with her child will extend the separation from her spouse.

Is that respecting private and family life?

Clearly the current rules as they stand are discriminatory towards women. Is that right? Is that fair?

As far as we know, she made the choice to return to the UK; no one forced her to. She has yet to come up with a reason for not staying in Thailand with her husband, having her child there and so keeping her family together while all this was sorted out.

The current rules, as did the old ones before them, apply equally to all those subject to them; regardless of gender or sexual orientation.

How is that discrimination?

[bangkockney]

In this case, however, I believe there is more to it. The UK sponsor is female and faces double jeopardy: in order for her family to settle in the UK she is expected to endure separation from both spouse and child. She is stuck between a rock and hard place - the choice of time with her child will extend the separation from her spouse.

Is that respecting private and family life?

Clearly the current rules as they stand are discriminatory towards women. Is that right? Is that fair?

The current rules, as did the old ones before them, apply equally to all those subject to them; regardless of gender or sexual orientation.

How is that discrimination?

Any minimum income requirement is discriminatory to women because of the income gap.

In addition, maternity leave, which if taken, will reduce earnings below those that allow a wife to sponsor a foreign spouse.

According to the ONS in 2010, only 58% of women work full time and have lower hourly earnings.

In 2012 The Fawcett Society says that women still earn 14.9% less on average than men for the same job, and that the income gap is likely to widen.

In the case of this thread, the only choice is of who she wants to be separated from the longest - spouse or child - should she exercise her right to move back to the UK.

Move to the UK, give birth and dump the baby on relative while she works for 6 months to be able to sponsor her spouse's application?

Or spend the important first 6 months of the child's life together, thus extending the separation from her spouse by a minimum of 12 months.

She wants a decent support network during and following the birth; I can sympathise with that.

[Waterloo]

In this case, however, I believe there is more to it. The UK sponsor is female and faces double jeopardy: in order for her family to settle in the UK she is expected to endure separation from both spouse and child. She is stuck between a rock and hard place - the choice of time with her child will extend the separation from her spouse.

Is that respecting private and family life?

Clearly the current rules as they stand are discriminatory towards women. Is that right? Is that fair?

The current rules, as did the old ones before them, apply equally to all those subject to them; regardless of gender or sexual orientation.

How is that discrimination?

Any minimum income requirement is discriminatory to women because of the income gap.

In addition, maternity leave, which if taken, will reduce earnings below those that allow a wife to sponsor a foreign spouse.

According to the ONS in 2010, only 58% of women work full time and have lower hourly earnings.

In 2012 The Fawcett Society says that women still earn 14.9% less on average than men for the same job, and that the income gap is likely to widen.

In the case of this thread, the only choice is of who she wants to be separated from the longest - spouse or child - should she exercise her right to move back to the UK.

Move to the UK, give birth and dump the baby on relative while she works for 6 months to be able to sponsor her spouse's application?

Or spend the important first 6 months of the child's life together, thus extending the separation from her spouse by a minimum of 12 months.

She wants a decent support network during and following the birth; I can sympathise with that.

Hi 7by7

I did want to respond to your post #39 but having just logged on I see things have moved on since then and others have written far better responses that I would have managed.

There were large chunks of what you posted that I would agree with but like Bangkockney I do think a women in Katies position face a greater disadvantage that could be over come by temporary third party support.

I am also aware as alluded to in Effln2ret excellent post #64 that some communties with a propensity to isolating themselves from the main stream have abused this option in the past.

Clearly a strong & fair imigration policey will encourage integration & some sections of the community have in the past chosen to live in isolation to there own detriment as well as the larger community.

Whilst I am sure you are correct that any article 8 challenge is likely to be lengthy I do hope that it or the parlimentary inquirie does encourage a rethink.

I think the current rules have been written in there current form to simplifie their application taking out any element of judgement and reducing the exercise to a series of simple yes/no options.

This might be simple to operate & judging by the inspectors latest report there is clearly room for improvement, it does tend to leave a certain amount of colateral damage, of which I believe Kate is one.

Good Luck Kate

P.S. I do believe you have sympathy for Kates position & give good advice

Edited February 10, 2013 by Waterloo

[Eff1n2ret]

I think the current rules have been written in there current form to simplifie their application taking out any element of judgement and reducing the exercise to a series of simple yes/no options.

Leaving aside the question of the financial provision rules, that pretty much sums up what the government have tried to do. It is probably the majority view in the UK that the operation of the Human Rights Act has led to not only criminals and terrorists, but a fair number of wholly unworthy people being able to remain in the UK. A while back, in the wake of a few such cases, Theresa May announced that she would change the Immigration Rules to define how the Human Rights Act should be interpreted, and the Statement of Changes promulgated last July is the result. I thought she was barmy when she made that announcement, and I still do. She is really trying to effect a change in an Act of Parliament, the HRA with a Statutory Instrument, the Immigration Rules, and say to the courts “We’ve written into the Rules how the HRA affects immigration decisions, so there’s nothing for you to consider, nothing to see here, move on..” The courts were never going to accept this, and the case linked by ThaiVisaExpress in post #35 is the result. However, it is interesting to note that in that case, although the court said that the government had no right to act as ultimate judge and jury on HRA matters, the Nigerian woman still lost her appeal because they said UKBA had given proper consideration to her Article 8 claim.

So, I don’t see the Rule changes surviving insofar as they try to define how the government can limit the scope of the courts to decide HRA cases, but that doesn’t mean that the imposition of financial requirements on settlement visa sponsors won’t survive in some form, it’s a completely separate matter. Maybe Ms May isn’t barmy, maybe she’s just building a case for amendment or even outright repeal of the Human Rights Act – “Well, we’ve tried everything else, the only way we can regain control of immigration policy is to get rid of it.” – so that a derogation from the ECHR would become part of the much vaunted “renegotiations” with the EU that Cameron likes to talk about. But what do I know, I’m just one of the poor bl00dy infantry who tried to carry on for 20 years while the UK’s immigration control descended into farce, largely through the incompetence of the Home Office and the eagerness of the judiciary to extend its powers far beyond what Parliament and the voters must have intended when asylum and hr legislation was originally passed.

Edited February 11, 2013 by Eff1n2ret

[bangkockney]

I think the current rules have been written in there current form to simplifie their application taking out any element of judgement and reducing the exercise to a series of simple yes/no options.

It is probably the majority view in the UK that the operation of the Human Rights Act has led to not only criminals and terrorists, but a fair number of wholly unworthy people being able to remain in the UK. A while back, in the wake of a few such cases, Theresa May announced that she would change the Immigration Rules to define how the Human Rights Act should be interpreted.

And herein lies the problem: amongst the media - and by extension the general public - there is little understanding of the human rights laws.

There is distorted reporting of human rights in the media by focusing on unrepresentative, high-profile cases. Further, lots of the negative stories actually have been about rather bizarre cases, and often those cases have failed and been thrown out of court, yet that is not reported.

Which leads to politicians pandering to wrongly-held public beliefs on the matter.

[Jay Sata]

UK newspapers carry stories most days citing article 8.

The headline below is on the front page today of one of the biggest mass circulation newspapers.

The rioters we can't kick out: 18 months after mayhem that shocked Britain, just 15 out of 200 convicted foreigners have been deported

• Ministers had promised to get tough after violence tore cities apart
  
• EU law and human rights rules have blocked deportation efforts
  
• More than 30 offenders have been told they are allowed to stay in the UK
  
• Many are behind bars still, but 80 are at large after being released
  

Theresa May is merely carrying out the wishes of the majority public opinion that immigration laws need further

tightening. UKIP are a new party currently seeing a huge increase in support because they wish to close the article 8

loophole. As I see it if an applicant can not show a job or income above the current limits then there is every chance

they will require some form of public support. That includes legal aid.

Edited February 11, 2013 by Jay Sata

[theoldgit]

This is an emotive issue, everyone has a view put please don't over personalise your remarks, I have removed some inflammatory posts, please keep it civil.

[7by7]

Bangkockney,

Any system which requires people to meet certain conditions is by it's very nature discriminatory as some will meet those conditions, others wont.

But as long as the same rules apply to all, then legally it is not discrimination in the sense that you mean.

Real equality means equality in all things, not just when it suits.

For example, one of the results of EU equality law was women drivers no longer receiving discounted motor insurance due to their lower average claim rate because it was discrimination against men!

As ever, Eff1n2ret, an excellent post. However;

so that a derogation from the ECHR would become part of the much vaunted “renegotiations” with the EU that Cameron likes to talk about

Whilst I am sure that you, and David Cameron, know that the ECHR has nothing to do with the EU; many may not.

I’m just one of the poor bl00dy infantry who tried to carry on for 20 years while the UK’s immigration control descended into farce, largely through the incompetence of the Home Office and the eagerness of the judiciary to extend its powers far beyond what Parliament and the voters must have intended when asylum and hr legislation was originally passed.

At least this government is trying to do something about this farce.

As far as the new settlement rules are concerned, I am broadly in agreement with them. Except for the new financial requirements for reasons already stated earlier in this topic and elsewhere.

Edited February 11, 2013 by 7by7

[Eff1n2ret]

;

so that a derogation from the ECHR would become part of the much vaunted “renegotiations” with the EU that Cameron likes to talk about

Whilst I am sure that you, and David Cameron, know that the ECHR has nothing to do with the EU; many may not.

Fair point; but the chicken-lickens who are constantly telling us that the sky will fall in if we leave the EU never fail also to make the point that the Human Rights Act must be accepted and maintained in its entirety as a condition of membership of the EU.

In my more frivolous moments I like to propose a simple one-clause amendment to the HRA which would remove the scourge of foreign criminals and terrorists and many of the other bottom-feeders who've inflicted themselves on our country:-

No provisions of this Act shall be invoked by, or benefit, directly or indirectly, any person who does not have Right of Abode or Leave to Enter or Remain in the United Kingdom.

Unfortunately that would also exclude visa applicants, but hey, you can't have everything.

[Jay Sata]

;

so that a derogation from the ECHR would become part of the much vaunted “renegotiations” with the EU that Cameron likes to talk about

Whilst I am sure that you, and David Cameron, know that the ECHR has nothing to do with the EU; many may not.

Fair point; but the chicken-lickens who are constantly telling us that the sky will fall in if we leave the EU never fail also to make the point that the Human Rights Act must be accepted and maintained in its entirety as a condition of membership of the EU.

In my more frivolous moments I like to propose a simple one-clause amendment to the HRA which would remove the scourge of foreign criminals and terrorists and many of the other bottom-feeders who've inflicted themselves on our country:-

No provisions of this Act shall be invoked by, or benefit, directly or indirectly, any person who does not have Right of Abode or Leave to Enter or Remain in the United Kingdom.

Unfortunately that would also exclude visa applicants, but hey, you can't have everything.

Thinking like that could save the UK a fortune. Of course other Euro countries often ignore the ECHR and just go ahead and deport the unwanted.

[David48]

Any system which requires people to meet certain conditions is by it's very nature discriminatory as some will meet those conditions, others wont.

But as long as the same rules apply to all, then legally it is not discrimination in the sense that you mean.

Real equality means equality in all things, not just when it suits.

...

[bangkockney]

Any system which requires people to meet certain conditions is by it's very nature discriminatory as some will meet those conditions, others wont.

But as long as the same rules apply to all, then legally it is not discrimination in the sense that you mean.

Real equality means equality in all things, not just when it suits.

...

No, under the HR framework you can not dismiss discrimination so matter-of-factly.

Article 14 is the prohibition of discrimination. It covers situations where the same rule applies to everyone but in practice has greater impact on one particular group (this is known as indirect discrimination).

The structure of Article 14 means that a person needs to be able to identify another Convention right in order to make use of the non­discrimination protection. However, that person does not need to identify an actual breach of the right to claim that they have been discriminated against with respect to their enjoyment of it. They simply need to show that the subject matter of the Convention right is activated. E.g. Article 8.

Importantly, the grounds on which discrimination is prohibited are not fixed - in other words, there is an "other status" category. This means the typical list of sex, race, religion etc can be expanded to include age and disability, for example.

The counter to this is showing that the discrimination arises through pursuing a legitimate aim and that the discriminatory treatment is proportionate to the aim.

I put it to you that reducing net migration is not a legitimate aim in the above context.

Given the new immigration rules disproportionately affect -

Women

The disabled

The elderly

Young people / students

- the above is clearly in play.

Indeed, these issues are currently being explored in a Birmingham court room.

[Waterloo]

Any system which requires people to meet certain conditions is by it's very nature discriminatory as some will meet those conditions, others wont.

But as long as the same rules apply to all, then legally it is not discrimination in the sense that you mean.

Real equality means equality in all things, not just when it suits.

...

No, under the HR framework you can not dismiss discrimination so matter-of-factly.

Article 14 is the prohibition of discrimination. It covers situations where the same rule applies to everyone but in practice has greater impact on one particular group (this is known as indirect discrimination).

The structure of Article 14 means that a person needs to be able to identify another Convention right in order to make use of the non­discrimination protection. However, that person does not need to identify an actual breach of the right to claim that they have been discriminated against with respect to their enjoyment of it. They simply need to show that the subject matter of the Convention right is activated. E.g. Article 8.

Importantly, the grounds on which discrimination is prohibited are not fixed - in other words, there is an "other status" category. This means the typical list of sex, race, religion etc can be expanded to include age and disability, for example.

The counter to this is showing that the discrimination arises through pursuing a legitimate aim and that the discriminatory treatment is proportionate to the aim.

I put it to you that reducing net migration is not a legitimate aim in the above context.

Given the new immigration rules disproportionately affect -

Women

The disabled

The elderly

Young people / students

- the above is clearly in play.

Indeed, these issues are currently being explored in a Birmingham court room.

very interesting great post

[David48]

Any system which requires people to meet certain conditions is by it's very nature discriminatory as some will meet those conditions, others wont.

But as long as the same rules apply to all, then legally it is not discrimination in the sense that you mean.

Real equality means equality in all things, not just when it suits.

...

No, under the HR framework you can not dismiss discrimination so matter-of-factly.

<snip>

Elegantly written and I can't fault a word.

Great to read a rebuttal without the cloud of emotion but with such clarity of thought.

However, I'm an outsider, an observer, and I just kind of like the idea of Universal Rules are applied ... well ... universally.

Thus I return to 7x7's comment ... "Real equality means equality in all things, not just when it suits."

.

[Waterloo]

Any system which requires people to meet certain conditions is by it's very nature discriminatory as some will meet those conditions, others wont.

But as long as the same rules apply to all, then legally it is not discrimination in the sense that you mean.

Real equality means equality in all things, not just when it suits.

...

No, under the HR framework you can not dismiss discrimination so matter-of-factly.

<snip>

Elegantly written and I can't fault a word.

Great to read a rebuttal without the cloud of emotion but with such clarity of thought.

However, I'm an outsider, an observer, and I just kind of like the idea of Universal Rules are applied ... well ... universally.

Thus I return to 7x7's comment ... "Real equality means equality in all things, not just when it suits."

.

David do you really mean that, as an Australian male in his mid forties I suspect you are more than happy to accept lower insurance premiums than a young man who has only just passed his test & is driving around in a big old V8.

From the young man’s perspective he might argue that he is being discriminated against on the Basis of age, but in my humble opinion both he & the EU courts (see 7by7 post) are wrong.

Insurance premiums were calculated without favour purely on the basis of the likelihood of the company having to pay out on the policy, this has now been distorted with the EU’s ruling.

Rules should take account of whether they have an unfair impact on one group or another & I believe the new rules unfairly impact on certain women living abroad who unexpectedly find themselves pregnant & want to return home with their foreign husbands.

Sorry to hear about your DVT by the way.

[David48]

^^

Hi there Waterloo … I have read your thinking, though I have to disagree with the premise of it.

Comparing the risk matrix of insurance premiums paid to a private company is not really akin to a government applying a Universal social policy.

Returning to the statement of "Real equality means equality in all things, not just when it suits."

Think of ‘Real Equality’ of the concept that ‘we are all equal under the law’.

There is no right or wrong answer here, no right or wrong perspective.

What does emerge is a difference of ideology between our countries if your and my opinion can be taken and accepted for the majority of our respected populations.

BTW thanks … the DVT danger is almost over … and that danger was a clot breaking away and causing a pulmonary embolism (lung). With my compression stocking, maybe even the LadyBoys will call out ‘Hansum Man’ now … but it will be a while before I’m back in the air again.

[Somtamme]

If this Govt prefers to control immigration using the £18,600 threshold, it would be interesting to know how to measure success of this policy and how it safeguards the UK's economic well-being through Article-8 of the ECHR.

I would suggest given the recent reports in response to the Independent Chief Inspectors report, that the the economic well-being of the UKBA is under severe strain, with Capita not UKBA being appointed to deal with outstanding 14,000 cases for reconsideration.

The problem as I see it, is there appears a systematic failure by the Home Office to understand that their charging policy should be centre stage to the visa assessment.

Currently, the UKBA charges are derived from the Immigration, Asylum and Nationality Act 2006, where under s.51 of the Act, the Secretary of State may designate through an order, the requirement for a fee to accompany the application for a visa or application for nationality and also, may make provision for enforcement.

Having been granted approval for settlement only last month, put simply if your bank balance remains constant or even with a positive gradient during this qualifying period, I must say that it is highly unlikely you'd be a risk to UK's economy afterwards.

So, if the Govt scrapped the £18,600 threshold and then completely reviewed the UKBA charging policy to ensure all costs by the UKBA are included in their fee structure, and to ensure the visa assessment is based on your balance sheet, it would prove that both the applicant and regulator are viable and do not pose a risk to anyone! The point is, this would bring the application process back under control of the applicant and not subject to any vagrancies in the labour market. All that would be needed would be for the reasonable costs incurred to be chargeable. For simple applications, this shouldn't be excessive, but there would be a need to include all service costs including enforcement.

Also, an assessment based on all income and outgoings is more difficult to perform, rather than using the current approach using a prescriptive model. But, surely as a society we should be striving for better regulation, not simpler?

[Waterloo]

Somtamme

Can you please direct me to were you have seen this announcement that Capita are to clear the imigration back log

[theoldgit]

Somtamme

Can you please direct me to were you have seen this announcement that Capita are to clear the imigration back log

Capita are not actually doing casework but they are trawling through UKBA case files to identify those who shouldn't still be in the UK and then making contact.

http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2013/january/20-capita