Appealing Uk Settlement Visa Refusal On Human Rights Grounds.

[Jay Sata]

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

This is a very hot political potato in the UK at present given the cross party support for the recent amendments.

"Dominic Raab, the Tory MP who has campaigned for tougher rules, said: “This chronic judicial legislation has undermined public protection and usurped the democratic will of Parliament.

“We now have around 200 Article Eight cases a year, so it is vital and urgent that Parliament amends the law to mandate deportation and brush aside these spurious challenges to the rule of law.”

There is a bit of a tug of war between the judiciary and elected government.

A Home Office spokesman said: “The Government has made clear its intention to bring forward primary legislation to prevent foreign nationals remaining in the UK through abuse of the Human Rights Act.”

Worth pointing out as well is that most cases re article 8 are funded from the public purse via legal aid.

Mass immigration has presented the UK with major infrastructure costs. There is a story in today's Daily Mail citing a School in Peterborough

where not one pupil out of 440 has English as a first language

http://www.dailymail.co.uk/news/article-2283696/Primary-school-ALL-440-pupils-speak-English-second-language-receives-glowing-Ofsted-report.html

As someone with a foreign born wife I sympathise with anyone trying to get a Thai partner to the UK. However some sort of immigration procedure has to be in place or the UK will be flooded with economic migrants.

If I may comment on Ms Harper's case surely it would be better for her and the child to be with the father in Thailand to await the outcome of the appeal. A family together is better than a family apart and the first four years will be no different for the child in Thailand or the UK.

Edited February 25, 2013 by Jay Sata

[David48]

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.

Fair point ... and the practical realities of life when the Courts are involved.

Seems Ms Harper is destined to have her baby in Thailand. After all, as she has shown such dedication to her husband, she dare not be parted from him. To see such a strong bonding in a relationship is inspiring ...

Assuming the above (favourable court decision not being reached before the bub is due) ... I just hope her (Ms Harper) Thai friends and her husband's family rally round and give her the support due to her.

Would be great for her, in time, revisit this tread and tell us of her outcome.

.

[7by7]

Actually, as she has posted elsewhere, she decided that having her baby in an NHS hospital in the UK was more important than remaining in Thailand with her husband so that he could be present at the birth of his child and the start of his child's life.

Her choice, of course, and doubtless she had, to her at least, valid reasons for reaching this decision.

[David48]

^^ ...

Thanks for the update 7by7

Would have been great to have here revisit this thread through since the focus was her situation.

Did she post in a Thai Visa Forum?

Is the husband planning to visit on a Tourist Visa (or UK equivalent) to share the joys of the birth?

[kateharper]

7 x 7 - Maybe let me answer questions addressed to me. I didn't come back because i thought having a baby in a NHS hospital was more important than staying with my husband. Don't put words in my mouth. I came back to be with my family, especially my Mum and sister for the birth. You would probably all understand that more if you were female!

We always thought we had a chance of my husband getting the visa, we didn't think that it would take so long for the decision and then the appeal. In hindsight, if we had have known he would miss the birth I wouldn't have come here earlier. I have been struggling with this decision since we found out how truly hard and what a long process this is. I couldn't fly back due to flight restrictions when pregnant, so we had to face our decision and we are trying to stay positive and strong! The baby and I would have a lot more support here anyway, my family are great!

We did look into a tourist visa for him but we wouldn't be able to appeal the settlement visa if we did that and we really want him here and here to stay. It would also be very difficult/impossible to get him one as it would be hard to prove he would go back! The lawyers agreed! I will probably go back to Thailand for a while when the baby is healthy and safe to travel and await the appeal their. I do need to be back if it goes to court though.

Our appeal has been set off, so no updates really. It's just, another, waiting game now!

[paully]

"We did look into a tourist visa for him but we wouldn't be able to appeal the settlement visa if we did that and we really want him here and here to stay. It would also be very difficult/impossible to get him one as it would be hard to prove he would go back!"

Yes, that was very sensible, kate.

Edited February 25, 2013 by paully

[Jay Sata]

OK Kate

I understand all that but I'm sure if you have a supportive family they will club together and pay the air fare to take you and your baby

back home to his father.

If you return to Thailand with your new baby you will have a stronger case.

I'm sure you'll feel better fighting this issue with your husband who needs your support.

I'm sure you want to share your child with his father.

[7by7]

"We did look into a tourist visa for him but we wouldn't be able to appeal the settlement visa if we did that and we really want him here and here to stay. It would also be very difficult/impossible to get him one as it would be hard to prove he would go back!"

Yes, that was very sensible, kate.

And completely wrong.

There is no reason why he could not apply for a visit visa whilst awaiting the outcome of his appeal. Whether it would be granted is, of course, a different question.

Although Ms Harper first asked about visas after the changes, she did ask about sending her dogs back to the UK in April last year. So one has to conclude that she was already considering moving to the UK then.

Perhaps she should have given as much thought to finding out about getting her husband to the UK as she gave to her dogs. Then she would have known about the changes well before they came into force, as anyone paying attention to this forum did, and could have submitted her husband's application before 9th July and so he would have come under the old rules and third party support would have been allowed.

In which case, we, presumably, would not be having this conversation.

Hindsight is a wonderful thing, but can't replace foresight!

[ThaiVisaExpress]

The appeal process will take the best part of a year if you succeed. Why don't you re-apply once the baby is born you may succeed under EX.1

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/ex1-guidance-1.pdf?view=Binaryhttp:

[kateharper]

No 7x7 you cannot apply for a tourist visa while appealing a settlement visa. We wouldn't have been able to proceed with the appeal.

Please stop talking about me in such a horrible way, address me if you have something to say or questions, I do read every post. I can't always reply as I'm busy.

Don't judge me so harshly, I don't know what your problem is with me. I didn't put more thought into my dogs than my husband, how dare you suggest that! You don't know me.

Thaivisa express - thanks i'll look into that.

[Tony M]

No 7x7 you cannot apply for a tourist visa while appealing a settlement visa. We wouldn't have been able to proceed with the appeal.

Please stop talking about me in such a horrible way, address me if you have something to say or questions, I do read every post. I can't always reply as I'm busy.

Don't judge me so harshly, I don't know what your problem is with me. I didn't put more thought into my dogs than my husband, how dare you suggest that! You don't know me.

Thaivisa express - thanks i'll look into that.

Kate, Sorry to disagree with you, but of course you can apply for a visit visa while a settlement visa is under appeal. Who told you that you can't ? Whoever it was, then they are wrong. If it was your lawyer, then I might question their abilities and knowledge.

[kateharper]

A lot of people said we wouldn't be able to actually. How are you so sure it's allowed, have you done it before? The lawyer just advised us that it would be really difficult to get one as it would be so difficult to prove he would have reason to return to Thailand!

[Tony M]

A lot of people said we wouldn't be able to actually. How are you so sure it's allowed, have you done it before? The lawyer just advised us that it would be really difficult to get one as it would be so difficult to prove he would have reason to return to Thailand!

Okay, that's different from saying that he cannot apply. He can. It would be difficult to convince an ECO that only a visit is intended, but there is nothing to stop him applying. The guidance on this is in the ECO's guidance, which states :

VAT22.1 Can an appellant seek admission to attend their appeal hearing?

This covers an applicant seeking entry to the UK who has an outstanding appeal because:

• they have appealed against a refusal of entry clearance; or
• they have appealed from abroad against a previous refusal of leave to enter.

Such a person has no right to be granted leave to enter for the sole purpose of attending the hearing. However, the applicant may be granted leave to enter as a visitor where:

• the applicant can satisfy the ECO that only a visit is intended; and
• that the applicant will leave the UK regardless of the outcome of the appeal; and
• that the applicant otherwise qualifies for entry under the Rules.

In such cases, due account should be taken of the likely timescale for any appeal hearing.

VAT22.2 Can an appellant with an outstanding appeal seek entry for some other purpose?

This covers an applicant seeking entry to the UK who has an outstanding appeal because:

• they have appealed against a refusal of entry clearance; or
• they have appealed from abroad against a previous refusal of leave to enter.

An appellant who has an outstanding appeal and who seeks entry for some other purpose, may be given leave to enter where they satisfy the requirements of the Rules for that other purpose.

Tony M

Edited February 26, 2013 by Tony M

[paully]

Hindsight is a wonderful thing, but can't replace foresight!

That's true!!

[kateharper]

Thanks Tony, that is very useful info! I am going to look into this properly. As we're not sure if we would definitely have a hearing and when it would be if we did, we could apply on the grounds of the pregnancy. Thanks it's worth a try, i really didn't think it was possible!

[kateharper]

Tony can you send me a link to this info?

[Tony M]

Thanks Tony, that is very useful info! I am going to look into this properly. As we're not sure if we would definitely have a hearing and when it would be if we did, we could apply on the grounds of the pregnancy. Thanks it's worth a try, i really didn't think it was possible!

If you do think about doing it then consider Paul from Thai Visa Express's advice above in #129. You might be able to use EX.1 in an application, even if it is not the main thrust of that application. It has limited parameters, but the ECO does ( to quote) "have a duty in section 55 of the Borders, Citizenship and Immigration Act 2009" to promote the welfare of a child in the UK where it would not be reasonable to expect the child to leave the UK.

Paul has given a link to EX.1 above.

This is a link to the stuff I quoted :

http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/vat/vat22/

Edited February 26, 2013 by Tony M

[kateharper]

The appeal process will take the best part of a year if you succeed. Why don't you re-apply once the baby is born you may succeed under EX.1

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/ex1-guidance-1.pdf?view=Binaryhttp:

visa

Thanks, when you say re-apply do you mean for a new settlement visa or a tourist visa?

[Waterloo]

Kate

assuming your baby is due before your husbands appeal date, I would suspect a case for his return can be built around him & you not wanting to jeapordise his appeal.

Tony M please correct me if I'm wrong

[Tony M]

Kate,

Paul is saying that you could apply for a settlement visa ( using EX.1 ) once the baby is born, and either withdraw the appeal, or let it run.

Waterloo,

It might well be possible to build such a case, but it will need to be skilfully done ( well - worded). It could be, though, that the appeal takes place while the applicant is in the UK. The guidance says that the applicant cannot obtain a visa for the sole purpose of attending an appeal, so if he otherwise qualifies as a visitor he could well be there when it happens.

Edited February 26, 2013 by Tony M

[Waterloo]

Kate,

Paul is saying that you could apply for a settlement visa ( using EX.1 ) once the baby is born, and either withdraw the appeal, or let it run.

Waterloo,

It might well be possible to build such a case, but it will need to be skilfully done ( well - worded). It could be, though, that the appeal takes place while the applicant is in the UK. The guidance says that the applicant cannot obtain a visa for the sole purpose of attending an appeal, so if he otherwise qualifies as a visitor he could well be there when it happens.

Thanks Tony

I suppose solicitors bills for the appeal, would be useful in supporting this position

[David48]

To kateharper ... couple of things.

Firstly, thanks for taking the time from your busy schedule to reply on the thread started by 7by7

While we are discussing and trying to learn by your experiences and trying to help you in the process, it's a little disingenuous to come and tell 7by7 that he has no right to comment in the thread that he started.

It's a public Forum and open to public comments, some of which you might find helpful, some of which you may not. But each member has the right to post within the Forum Rules.

The moderating team are all over the Forum and if a comment is inappropriate, there are consequences ... so rest assured, your rights, are being protected.

Now, before you dismiss what I write, understand this please.

We all learn by each others experiences, we share this information, discuss it and our collective knowledge grows.

You are both a brave and strong person to share your dilemma and maybe you think you have copped some unfair criticism along the way.

But what you have done kateharper is that you have made it easier for the next lady who finds herself in your predicament and facing the issues and problems which you are currently dealing with.

I wholeheartedly applaud your posts, each and every one of them. I may disagree with them, but acknowledge them all ...

Last year my gf applied to come to my country and what we did was document to the Visa application process, step by step, so that the next person here on Thai Visa could read and pick up some pointers to help them.

In your own unique way ... you have done the same.

I am sure that everyone here wishes you every success ...

[marstons]

7 x 7 - Maybe let me answer questions addressed to me. I didn't come back because i thought having a baby in a NHS hospital was more important than staying with my husband. Don't put words in my mouth. I came back to be with my family, especially my Mum and sister for the birth. You would probably all understand that more if you were female!

We always thought we had a chance of my husband getting the visa, we didn't think that it would take so long for the decision and then the appeal. In hindsight, if we had have known he would miss the birth I wouldn't have come here earlier. I have been struggling with this decision since we found out how truly hard and what a long process this is. I couldn't fly back due to flight restrictions when pregnant, so we had to face our decision and we are trying to stay positive and strong! The baby and I would have a lot more support here anyway, my family are great!

We did look into a tourist visa for him but we wouldn't be able to appeal the settlement visa if we did that and we really want him here and here to stay. It would also be very difficult/impossible to get him one as it would be hard to prove he would go back! The lawyers agreed! I will probably go back to Thailand for a while when the baby is healthy and safe to travel and await the appeal their. I do need to be back if it goes to court though.

Our appeal has been set off, so no updates really. It's just, another, waiting game now!

The family is the Father, why more support? would that be from the British tax payer by any chance. No reason why you could not have stayed here and had the baby as a true family with the father present. As an out sider I would view this application as a high chance of a burden on the state. UKBA are not the enemy but a government body in place to apply the rules given by parliament, Parliament are in place to imply the will of the people as is the way of a democracy. the human rights card is overplayed to the point of nausea. Your response to 7x7 probably reflects why Thailand's gain of your departure is the UK loss. Straight question are you getting any state benefits now? simple yes or no, I am sure the father is fully supporting fully though.

[Somtamme]

For any new applicant after 9th July 2012 they will need to pass the new financial test. This test is the Govt's choice of policy to control immigration and to ensure the new applicant will not impact on the state.

For entry clearance and further leave to remain this new test is based on;

- salary threshold of £18,600 of only the UK sponsor (s.83e Statement of Intent) for the first two and half years or;

- contribution from savings calculated at two and half times the shortfall plus £16,000 (s.170 of Statement of Intent) for the first two and half years.

So, for someone like Kate and her husband failing to meet this financial test, means if the Govt's test is correct, that the applicant will be at risk of claiming state benefits. However, the entry clearance and FLR permit is issued to the applicant on the basis of no recourse to public funds. So it would appear an invalid test is being applied.

After FLR being granted this is still issued on the basis of no recourse to public funds, but from this point on, the applicant is then able to work.

By giving both Kate and her husband an opportunity, who can say they may not in the period leading up to the ILR in 5 years time for both of them to have a salary close to of even over the threshold and with any shortfall made up of savings. This period also does not incur a savings penalty weighting of 2.5 times the shortfall, unlike entry clearance or FLR stages.

After, granting of the ILR for cases like Kate and her husband I don't understand why there isn't more flexibility in the system. If the critical issue is regarding access to public funds, why can't the granting of the ILR also be made conditional to the recourse to public funds, say on a time weighted basis to help build NI contributions and buy-in to UK society.

Without access to public funds for the applicant even just up to the point of further leave to remain, any couple would need to think carefully before choosing which country to build a future in.

In terms of the validity of the financial tests having been introduced by this Govt, these will also need to pass the test of primacy of EU legislation whereby European law (Article 8 of EHRC) takes precedence over domestic law.

[Jay Sata]

Most of the article 8 challenges to UK immigration law are funded by legal aid.

The Prime Minister is planning to block this route. Speaking to a national newspaper yesterday

David Cameron yesterday promised to crack down on the benefits free-for-all for migrants coming to Britain.

The Prime Minister revealed that newcomers are to be banned from claiming legal aid in cases involving benefits, housing and other civil claims.

And the measure – expected to save taxpayers millions of pounds – is the first step in wide-ranging regulations to curb immigrants from getting immediate access to public services and benefits.

“We’re a fair country and a welcoming country, but not a soft touch,” Mr Cameron said. “Let’s make sure that ours is the toughest country instead of the softest.”

He said the plan is designed to save cash from Britain’s £2billion annual legal aid bill.

He has asked Justice Secretary Chris Grayling to develop a new “residency test” to ensure that migrants do not get automatic access to legal aid in civil court cases. A Government study to look into the new policy will be announced soon.

[kateharper]

David48 - I understand that everyone is entitled to their opinions, I understand that. However to sggest that I care more for my dogs than my husband! Is that fair and sticking to the topic?

[Jay Sata]

David48 - I understand that everyone is entitled to their opinions, I understand that. However to sggest that I care more for my dogs than my husband! Is that fair and sticking to the topic?

In my opinion it is. I looked back at your posts regarding the dogs and you did your research and employed a company who knew what they were doing.

However it appears with your husbands visa you did it yourself.

There are quite a few visa experts on this forum who give advice free of charge. However they run visa services that help people like you.

You must have known before you applied that the visa would be refused. However reading between the lines you appear to be a feisty lady and you thought you could win.

You are now spending money with lawyers in the UK when perhaps a better approach is to substantiate your relationship with your husband and return to Thailand and start again.

I'm sure if you really love your husband you want to be with him and the baby.

If you have a supportive family in the UK I'm sure they will want the same.

I wish you all the best and hope you take your child home to meet his father.

[bwalker1973]

If you have children then there are loopholes to the new rules but the children must be british.

The UK has signed up to UN Convention on the Rights of a Child, which it has ratified into law and must protect the interests of the child.

I have an appeal under Article 8.1 for me and my son under the ECHR and also UNCHR. And also filed a separate appeal using my British Son taking Action under the UN Convention on the Rights of a Child.

They refused my wife saying Im not in a relationship with my sponsor even though we live together, got married, and have a child and all utilities are in both names. They also refused under the financial element stating I dont meet the financial element even though I have 260K in a brokerage account which of that 105K is held in a cash account with the brokerage for the last year. I even produced 6 months bank statements with a balance of 138K with monthly salary going in from US Fortune 100 company.

Under the UN Convention on the Rights of a Child, it states the government as a responsibility to make sure the children's rights are protected, and those rights include:-

The Right to live with both parents, the right to be raised by both parents and the right to not be separated from both parents, the right to family life, and the right to a nationality. No child should be treated unfairly on any basis. The government must help us maintain these human rights of a child, and create an environment where the child can grow up and reach his potential in a family environment.

So if you have children who are British, then you can also use this. The applicant cannot appeal on Human Right Issues, but the sponsor and child can.

Edited June 22, 2013 by bwalker1973

[bwalker1973]

Also the immigration rules state that the financial element is compatible with Article 8, but it is not compatible to Article 14 of the ECHR. The thresholds are a breach of Article 14 and is discriminating, meaning that middle class and upper class citizens, can marry there true love abroad and fetch their family back to the UK without a problem, but the lower class, can marry but will never be allowed to bring their family home. Even though this does not relate to my case, I just want to point out that it is solely discriminating against the lower class and upper class of the society. This element should me removed on the grounds of the above principle.

[7by7]

I have been lambasted for pointing the following out in this topic before, but it is the reality of the situation.

The government and their lawyers have opined that the new family migration requirements, including the financial requirements, do not breach any human rights laws or conventions.

Others disagree.

It will ultimately be a matter for the courts to decide. But as any appeal against a refusal under these new regulations on human rights grounds will doubtless go all the way to the ECHR, that is going to take a long time.

As those who have read my posts on this in the topic about these changes will know, I think that the financial requirement is ill thought out and unfair. I do have sympathy for those who, despite being able to fully support themselves, have fallen foul of them.

But people do need to understand the realities. Unless the government listens to the recommendations of the Parliamentary review, doubtful, these requirements are not going to be changed in the short term.