Appealing Uk Settlement Visa Refusal On Human Rights Grounds.

[Eff1n2ret]

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.home...nuary/20-capita

What it really means is that they've given up on the whole business because sending round enforcement teams to arrest these people is very expensive, and ultimately non-productive as they can't remove them quickly, because most of the countries to where the offenders should be sent won't accept them back without a passport, and won't issue them with one, and because of the apparent ability of the legal profession to make a nonsense of the appeal system by constantly raising new grounds. So they can't be detained and have to be released.

Contrary to what UKBA maintain, it's not a huge problem to find many of these people. But it's much cheaper to pay a fee to an organisation like Capita and pretend the problem's being dealt with. Then they can get rid of all those expensive immigration officers, who are rendered ineffective because of the reasons given above.

[theoldgit]

I'm not going to argue with your take on that.

Sent from my iPhone using ThaiVisa app

[Waterloo]

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.home...nuary/20-capita

What it really means is that they've given up on the whole business because sending round enforcement teams to arrest these people is very expensive, and ultimately non-productive as they can't remove them quickly, because most of the countries to where the offenders should be sent won't accept them back without a passport, and won't issue them with one, and because of the apparent ability of the legal profession to make a nonsense of the appeal system by constantly raising new grounds. So they can't be detained and have to be released.

Contrary to what UKBA maintain, it's not a huge problem to find many of these people. But it's much cheaper to pay a fee to an organisation like Capita and pretend the problem's being dealt with. Then they can get rid of all those expensive immigration officers, who are rendered ineffective because of the reasons given above.

Thank you both, most informative as always

[Somtamme]

Waterloo,

This is from UKBA's partially accepted response to the Independent Chief Inspectors report (2013, Recommendation 5 "We recommend that the UK Border Agency urgently addresses the backlog of 14,000 cases where an application for reconsideration has been made and makes an initial decision in the 2,100 temporary migration cases." E.g.

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/chief-insp/marriage-civil.pdf

The point I was making, that without a complete review of the UKBA charges (which do not cover enforcement) it is left to their contractor to write to this backlog of cases. This is a clear indication that their system is under severe strain and it is completely unacceptable. Why should the tax-payer be burdened with this cost? Enforcement is I agree costly, but must be integral to the application process.

Also, the point I was trying to make is the charges should be commensurate with the risk, so for relatively simple applications, these should not cost the same as more complicated ones.

Also, as a society we should expect the best standards and regulations not contractors picking up the pieces. Would you like contractors to enforce the Banks, I do not think so! I also agree with the previous respondents that the £18,600 criteria is wrong, but have offered an alternative solution

[MAJIC]

Waterloo,

This is from UKBA's partially accepted response to the Independent Chief Inspectors report (2013, Recommendation 5 "We recommend that the UK Border Agency urgently addresses the backlog of 14,000 cases where an application for reconsideration has been made and makes an initial decision in the 2,100 temporary migration cases." E.g.

http://www.ukba.home...riage-civil.pdf

The point I was making, that without a complete review of the UKBA charges (which do not cover enforcement) it is left to their contractor to write to this backlog of cases. This is a clear indication that their system is under severe strain and it is completely unacceptable. Why should the tax-payer be burdened with this cost? Enforcement is I agree costly, but must be integral to the application process.

Also, the point I was trying to make is the charges should be commensurate with the risk, so for relatively simple applications, these should not cost the same as more complicated ones.

Also, as a society we should expect the best standards and regulations not contractors picking up the pieces. Would you like contractors to enforce the Banks, I do not think so! I also agree with the previous respondents that the £18,600 criteria is wrong, but have offered an alternative solution

Some may consider that a UK income of £18,600 annual income requirements for a settlement visa is unfair,but no worse than the Thai Visa requirements for Retirement Visas of showing 800,000 in a Thai Bank,and 400,000 for a Married mans Visa in a Thai Bank. Both of the above also have a: and/or monthly income requirement.Try starting a Topic on how unfair this is for the Retirees,and there will be plenty ready to shoot you down.

The plain facts are: Any Country has the right to stipulate that they can impose any Visa application rules,they so chose.

And there are many other unpopular visa rules. And don't think that Thailand will oblige by considering a Human Rights appeal,it just doesn't exist!

Edited February 14, 2013 by MAJIC

[Somtamme]

Majic, but the discussion thread here is regarding the UK's new rules not Thailand's. These policies are supposed to be proportionate response to a problem, but actually the policies being introduced are having a detrimental impact on not just the applicants, but also the UKBA and the tax payer. They cannot therefore be proportionate.

[thunder30101]

What exactly is the detrimental impact on the uk from imposing immigration rules that require a person to show that they can provide for themselves and their families without having the uk taxpayer be finacially responsible for them ??? Is it someones human right to expect the uk taxpayer to pick up their living costs just because they wish to live in a better country ???

[Jay Sata]

What exactly is the detrimental impact on the uk from imposing immigration rules that require a person to show that they can provide for themselves and their families without having the uk taxpayer be finacially responsible for them ??? Is it someones human right to expect the uk taxpayer to pick up their living costs just because they wish to live in a better country ???

It appears that is the case with many who complain about the financial requirements. If we look at case that started this thread the applicant has decided the UK offers superior health and education opportunities for her family despite seven years in Thailand.

It's interesting to compare UK benefits with the BA financial threshold.

A couple with one child living entirely on state benefits can expect to receive around £17,000 without any employment.

[kateharper]

My goodness when are you going to get it? Non-EU spouse's CAN NOT CLAIM benefits!!! As the sponsor who you are all still discussing too, you don't know me, so don't claim too know why I came back. As a man you just don't understand, ever been pregnant? No, so you don't understand at all. I came back for my family and friends. Even if I agree the health care and education are much better, so what? I am British, doesn't even matter! I should gave the right to it and living here with whomever I happened to have fallen in love with!

[Khonwan]

I agree with your post above, Kate, and wish you success.

As an aside, having lived here in Thailand with my wife (Thai) for 19 years, the majority of that time in a very rural area, with two daughters approaching 12 & 17, and having some experience of local government schools and hospitals, I would contend that Thailand is very much inferior to UK in these regards.

I acknowledge that the British government may well be more mindful of British minority communities (probably particularly from South Asia – the Indian sub-continent) not integrating but rather marrying non-British partners from their own ethnic countries and therefore exacerbating problems in the UK caused by non-integration but I believe that their sledgehammer approach to this problem has to be changed in order to protect the legitimate expectations of people like Kate.

[Waterloo]

I agree with your post above, Kate, and wish you success.

As an aside, having lived here in Thailand with my wife (Thai) for 19 years, the majority of that time in a very rural area, with two daughters approaching 12 & 17, and having some experience of local government schools and hospitals, I would contend that Thailand is very much inferior to UK in these regards.

I acknowledge that the British government may well be more mindful of British minority communities (probably particularly from South Asia – the Indian sub-continent) not integrating but rather marrying non-British partners from their own ethnic countries and therefore exacerbating problems in the UK caused by non-integration but I believe that their sledgehammer approach to this problem has to be changed in order to protect the legitimate expectations of people like Kate.

Whilst agreeing with everything said above I would like to add that I beleive it is also in the interest of the said groups to encourage them to integrate more, groups that tend to be too insular on the whole seem to be held back economically.

[durhamboy]

My goodness when are you going to get it? Non-EU spouse's CAN NOT CLAIM benefits!!! As the sponsor who you are all still discussing too, you don't know me, so don't claim too know why I came back. As a man you just don't understand, ever been pregnant? No, so you don't understand at all. I came back for my family and friends. Even if I agree the health care and education are much better, so what? I am British, doesn't even matter! I should gave the right to it and living here with whomever I happened to have fallen in love with!

Kate you are quite right. The Settlement Visa stamp in an applicant's passport actually states "No recourse to public funds". Anyway, as I understand it, your husband's refusal was not on the grounds of jeopardising the economic well-being of the UK (which was a spurious argument anyway) but that there was nothing to prevent you from continuing to live in Thailand after having been there for 7 years. I think this thread should concentrate on that issue and not get carried away with costs and benefits etc.

In your case the big difference between now and the last 7 years is that you are pregnant. I believe you therefore have a very good reason for wanting/having to live in the UK. The UK Government are often heard trotting out the phrase "The well being of the child is paramount" so hopefully you can take them to task over this. As I posted before, Thailand has well over twice the child mortality rate of the UK so if the child's welfare really is paramount then that alone may be enough to win your case.

Finally to all you other guys that think that Kate is somehow playing the system then you should be ashamed of yourselves. She wants to bring her child up in the UK (for which she has every right to do) and she wants to bring the husband/father to the UK to provide a proper family unit. The only reason she is prevented from the latter wish is that it is impossible for them to meet an arbitrary financial requirement (which is crazy anyway because it doesnt consider costs) and she is not entitled to rely on any financial support from her UK family. Seems to me that it is HMG that is playing the system not Kate

[paully]

Finally to all you other guys that think that Kate is somehow playing the system then you should be ashamed of yourselves.

Steady on, old boy. Some of us were merely attempting to point out to kate that she should be realistic about her appeal and chances of success.

[kateharper]

Finally to all you other guys that think that Kate is somehow playing the system then you should be ashamed of yourselves.

Steady on, old boy. Some of us were merely attempting to point out to kate that she should be realistic about her appeal and chances of success.

Some have been though, on previous posts.

[David48]

1 of 2

For a different viewpoint as this thread has great potential to discuss a wider gambit of ideas and viewpoints.

In the seven years that Kate, you lived in Thailand, did you not integrate in part into Thailand, develop a network of friends there?

Did you not develop a deep connection with your husband’s family so that they were also your own family?

Would not the friends and your husband’s extended family in Thailand support the birth of your child?

You put a strong case about your Human Rights and no-one is denying that you have an inalienable right to return the UK and have your child born there. But the Nation has declined you husband leave to enter and remain in the country. Doesn't the country also have rights about who it admits also.

How does your husband feel about leaving Thailand and moving permanently to the UK?

.

[David48]

2 of 2

Given that appeals take a very long time, at what stage of your pregnancy would you simply remain in Thailand with your husband or leave and depart for the UK?

Have you considered a ‘Plan B’ if your appeal fails?

The above are questions, just questions. They are not personal attacks, they don't particularly represent my personal viewpoints.

The reason that I ask is that Kate you are a woman and thus you have a unique perspective that I and maybe others here can learn from your experience.

Would you be generous enough to open up and discuss some or all of the questions asked above?

I wish you every success in uniting your family in the UK ...

.

[MAJIC]

1 of 2

For a different viewpoint as this thread has great potential to discuss a wider gambit of ideas and viewpoints.

In the seven years that Kate, you lived in Thailand, did you not integrate in part into Thailand, develop a network of friends there?

Did you not develop a deep connection with your husband’s family so that they were also your own family?

Would not the friends and your husband’s extended family in Thailand support the birth of your child?

You put a strong case about your Human Rights and no-one is denying that you have an inalienable right to return the UK and have your child born there. But the Nation has declined you husband leave to enter and remain in the country. Doesn't the country also have rights about who it admits also.

How does your husband feel about leaving Thailand and moving permanently to the UK?

.

A very sensible post that cuts through the emotional element,and uncovers the hard factual questions!

[7by7]

Anyway, as I understand it, your husband's refusal was not on the grounds of jeopardising the economic well-being of the UK (which was a spurious argument anyway) but that there was nothing to prevent you from continuing to live in Thailand after having been there for 7 years.

He was not refused because Ms Harper had lived in Thailand for the previous 7 years and could continue to do so.

Although Ms Harper has not told us the full details of her husbands refusal notice, from what she has said elsewhere he was refused for not meeting the new financial criteria. Something she knew would happen even before the application was submitted.

Read the early part of this topic and you will see a post of hers where she quotes the final part of the refusal notice; which says that the application has been considered under Article 8 and does not fall under this due to her living in Thailand for 7 years and there being no reason why she cannot continue to do so. She chose to move back to the UK, for understandable reasons; she wasn't forced to.

They do have a point.

Article 8 does not mean that anyone can live in any signatory country with their family regardless of any other considerations. It is a qualified right.

Basically, unless their are other factors such as a threat to personal safety hence seeking asylum, a signatory country's immigration law overrides Article 8.

Unless that immigration law is itself deemed to be in breach of Article 8.

The government's lawyers say these new financial requirements aren't.

Ms Harper's lawyers, and many others, say that they are.

The courts will decide who is correct; but as said before, I can see this going all the way to the ECHR; a lengthy and expensive process.

Edited February 16, 2013 by 7by7

[Jay Sata]

Anyway, as I understand it, your husband's refusal was not on the grounds of jeopardising the economic well-being of the UK (which was a spurious argument anyway) but that there was nothing to prevent you from continuing to live in Thailand after having been there for 7 years.

He was not refused because Ms Harper had lived in Thailand for the previous 7 years and could continue to do so.

Although Ms Harper has not told us the full details of her husbands refusal notice, from what she has said elsewhere he was refused for not meeting the new financial criteria. Something she knew would happen even before the application was submitted.

Read the early part of this topic and you will see a post of hers where she quotes the final part of the refusal notice; which says that the application has been considered under Article 8 and does not fall under this due to her living in Thailand for 7 years and there being no reason why she cannot continue to do so. She chose to move back to the UK, for understandable reasons; she wasn't forced to.

They do have a point.

Article 8 does not mean that anyone can live in any signatory country with their family regardless of any other considerations. It is a qualified right.

Basically, unless their are other factors such as a threat to personal safety hence seeking asylum, a signatory country's immigration law overrides Article 8.

Unless that immigration law is itself deemed to be in breach of Article 8.

The government's lawyers say these new financial requirements aren't.

Ms Harper's lawyers, and many others, say that they are.

The courts will decide who is correct; but as said before, I can see this going all the way to the ECHR; a lengthy and expensive process.

Lengthy and expensive and I assume legal work funded by the UK taxpayer.

In my opinion the gender of the applicant is irrelevant.

I have a friend who has resided in Thailand for 7 years. He has a four year old son born in Thailand (with a British passport) and his wife's ILR expired several years ago. He is 68 and has three children and some grandchildren in the UK. If he decided to return to the UK with his young son who has duel nationality he would not be allowed to bring his wife as they could not satisfy the financial section of an application.

In other words like many men if he chose to return he would be separated from his partner.

That as they say is the way the cookie crumbles.

Edited February 16, 2013 by Jay Sata

[Eff1n2ret]

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.”

That now looks as if it's exactly the course she is on, judging by a column she has written for today's Daily Mail:-

http://www.dailymail...-Secretary.html

She specifically refers to the set of Immigration Rule changes introduced last July:-

I thought that possibly the problem for the judges was that our Parliament had not explicitly stated how the right to family life could be restricted. So in June last year I ensured that the House of Commons was able to debate my amendments to the immigration rules.

Those amendments stated that in the usual case, any foreign national who was convicted of a serious crime should be deported, regardless of whether or not the criminal had a family in the UK. After a vigorous debate, the Commons adopted the changes unanimously. There was no division because there was no one in the Commons who opposed them.

I made it clear that I would introduce primary legislation should the Commons’ acceptance of my amendments not be sufficient to persuade judges to change the way they interpreted Article Eight. But I hoped that the outcome of the debate would be enough.

She goes on to comment on the continued refusal of the judges to apply any sort of proportionality in the light of the importance attached by Parliament to this matter, and says:-

I am therefore determined to introduce primary legislation that will specify that foreign nationals who commit serious crimes shall, except in extraordinary circumstances, be deported

Of course, none of that may have any direct implications for the provisions requiring minimum income for sponsors, but they were included in the same set of Rule changes, so it is possible that part of the Government's case will be that the requirement was subject to Parliamentary debate, unlike most Statutory Instruments. Maybe so, maybe not, but it now seems that a determined challenge to the way the Human Rights Act has so far operated is now emerging.

[Jay Sata]

She talks in a much broader context

"Unfortunately, some judges evidently do not regard a debate in Parliament on new immigration rules, followed by the unanimous adoption of those rules, as evidence that Parliament actually wants to see those new rules implemented.

As a justification for ignoring the new rules, one immigration judge recently stated that ‘the procedure adopted in relation to the introduction of the new rules provided a weak form of Parliamentary scrutiny.

Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for him or herself’.

Just think for a moment what this judge is claiming. He is asserting that he can ignore the unanimous adoption by the Commons of new immigration rules on the grounds that he thinks this is a ‘weak form of parliamentary scrutiny’.

I find it difficult to see how that can be squared with the central idea of our constitution, which is that Parliament makes the law, and judges interpret what that law is and make sure the executive complies with it."

Edited February 17, 2013 by Jay Sata

[Eff1n2ret]

She talks in a much broader context

Indeed. I didn't want to burden my post with an excessively long quotation, but your contribution is actually more relevant in pointing up the possible implications for that particular body of Rule changes as a whole.

[Jay Sata]

She talks in a much broader context

Indeed. I didn't want to burden my post with an excessively long quotation, but your contribution is actually more relevant in pointing up the possible implications for that particular body of Rule changes as a whole.

I see the BBC has also highlighted that quote.

http://www.bbc.co.uk/news/uk-21489072

[durhamboy]

Anyway, as I understand it, your husband's refusal was not on the grounds of jeopardising the economic well-being of the UK (which was a spurious argument anyway) but that there was nothing to prevent you from continuing to live in Thailand after having been there for 7 years.

He was not refused because Ms Harper had lived in Thailand for the previous 7 years and could continue to do so.

Although Ms Harper has not told us the full details of her husbands refusal notice, from what she has said elsewhere he was refused for not meeting the new financial criteria. Something she knew would happen even before the application was submitted.

Read the early part of this topic and you will see a post of hers where she quotes the final part of the refusal notice; which says that the application has been considered under Article 8 and does not fall under this due to her living in Thailand for 7 years and there being no reason why she cannot continue to do so. She chose to move back to the UK, for understandable reasons; she wasn't forced to.

They do have a point.

Article 8 does not mean that anyone can live in any signatory country with their family regardless of any other considerations. It is a qualified right.

Basically, unless their are other factors such as a threat to personal safety hence seeking asylum, a signatory country's immigration law overrides Article 8.

Unless that immigration law is itself deemed to be in breach of Article 8.

The government's lawyers say these new financial requirements aren't.

Ms Harper's lawyers, and many others, say that they are.

The courts will decide who is correct; but as said before, I can see this going all the way to the ECHR; a lengthy and expensive process.

Sorry 7x7 but surely the essence of this case is that he was refused because they could continue to live in Thailand. I have looked back at the previous posts by Kate and the refusal notice stated

" 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."

Ok this wasnt the full notice and granted the refusal was also on the grounds of failure to meet the financial requirement. As you say Kate and her husband knew that was going to happen so they brought the human rights aspect into play from the outset and were refused on these grounds also. The reason for the refusal on human rights grounds is that they could still live in Thailand - the UKBA seemingly failing to acknowledge that the goalposts have changed with the imminent birth.

In my opinion it is the new financial requirements and not allowing third party support that are preventing Kate and her family from exercising their right to a family life under Article 8.

[7by7]

As I understand it, all visa applications are judged on whether or not the application meets the requirements of the immigration rules for the type of visa applied for.

If it does, visa granted; if it doesn't, visa refused.

Ms Harper's husband's application didn't meet the financial requirements of the immigration rules for a settlement application by a spouse, partner or fiance, so it was refused.

However, as it was a family settlement application the ECO then has to decide whether or not there are grounds for making a special case under Article 8 and so granting the visa anyway.

In this case, because Ms Harper had been living in Thailand for the previous 7 years and there was no reason why she could not continue to do so, especially as she is now the wife of a Thai citizen, they decided that there were no grounds for making such an exception.

They also seem to have decided, if they considered it at all (assuming this fact was even mentioned in the application), that her being pregnant made no difference. Babies are born every day in Thailand without difficulty and being born in Thailand would make no difference to the child's British nationality (unless Ms Harper is herself British by descent).

Whether or not that was the right decision is now for the courts to decide.

Edited February 17, 2013 by 7by7

[Eff1n2ret]

Sorry 7x7 but surely the essence of this case is that he was refused because they could continue to live in Thailand.

If Ms Harper had been able to meet the financial requirements a settlement visa would presumably have been granted. She couldn't, so the application was refused.

Guidance to entry clearance officers ECB02 states:-

An entry clearance officer must take Human Rights' considerations into account when reaching a decision.

Edit - I see 7/7 has already replied - but the requirement applies to all applications, not just settlement.

Edited February 17, 2013 by Eff1n2ret

[7by7]

Edit - I see 7/7 has already replied - but the requirement applies to all applications, not just settlement.

Thanks for putting me straight on that.

[David48]

Any updates ?

[Eff1n2ret]

Any updates ?

Perhaps this is relevant:-

http://www.telegraph.co.uk/news/uknews/immigration/9890093/Theresa-Mays-tough-immigration-rules-defied-by-top-judge.html

[7by7]

Any updates ?

Until and unless a judgement from the ECHR forces the government to change the immigration rules, i.e. the law, then each appeal is going to be treated on it's own merits.

As I understand it, the early stages of the appeal process only decide whether or not the refusal was correct under the immigration rules; which it was. It is only when/if the case reaches the higher courts that human rights considerations will be taken into account.

So, assuming I am correct, it will be many months, maybe several years, before Ms Harper and her husband recieve their final determination.